SPECIAL PROCEEDINGS Part III DEFINITION:
― A A special proceeding is a remedy by which a party par ty seeks to establish a status, sta tus, a right or a particular fact.‖ (Sectio n (c), Ru le 1)
The term ―special proceeding‖ may be defined as an application or proceedi ng to establish the status or right of a party, or a particular fact. Usually, in special proceedings, no formal pleadings are required unless the statute expressly so provides and the remedy is granted generally upon an application or motion. ‖ G.R. No. No. 133000, 133000, Oct Oct ob er 2, 2001 ) (Natc her vs . CA, G.R. A special proceeding, ―by which a party seeks to establish a status, right, or a particular fact, ‖ has one definite party, who petitions or applies for a declaration of a status, M o nta ñ er vc CA , G.R. N o. 174975, right, or particular fact, but no definite def inite adverse adverse party. ( Mo Jan uary 20, 2009)
Are the enumerations under Sec. 1, Rule 72 exclusive? The list under Section 1, Rule 72 is not exclusive. Any petition which has for its main purpose the establishment of a status, right or a particular fact may be included as special proceeding. (Festin, Special Proceedings, Proceedings, A Foresight to the Bar Exam: Question and Answ er
Noted , Bar Questio ns , Cases and Upd ated Laws , 2011) 2011)
What are some of the cases which are considered special proceeding? 1. 2. 3. 4. 5. 6. 7.
Declaration of Nullity of Marriage; Annulment of Marriage Insolvency proceedings Proceeding for the issuance of writ of amparo Proceedings for the issuance of writ of habeas data Alternative Dispute Resolution proceedings; Presumptive death
Can a special proceeding be joined with ordinary civil actions?
No, by express provision of Sec. 5, Rule 2 which requires that the joinder of causes of action must not involve special civil actions or actions governed by special rules, (which includes special proceedings)
Specific rules on settlement prevail over general rules
We read with approval the CA ’s use of statutory construction principle of lex specialis derogate generali, leading to the conclusion that the specific provisions of Section 5, Rule 86 of the Rules of Court should prevail over the general provisions of Section 11, Rule 6 of the Rules of Court; the settlement of the estate of deceased persons (where claims against the deceased should be filed) is primarily governed by the rules on special proceedings, while the rules provided for ordinary claims, including Section 11, Rule 6 of the Rules of Court, merely apply suppletorily . ( Me Me t r o p o l i t an an B a n k & T r u s t ) C o m p a n y v . A b s o l u t e M an an a g e m e n t C o r p o r a t i o n , , G.R. No. 170498. Janu ary 9, 2013 4.1. SETTLEMENT OF ESTATE OF DECEASED PERSONS, VENUE AND PROCESS
A special proceeding for the settlement of an estate is filed and intended to settle the entire estate of the deceased is obvious and elementary ( Vda. De Reyes Reyes vs . CA, G.R. No . L -47027 -47027 Janu ary 27, 1989 ). Probate of the will takes precedence ). over intestate proceedings: Effect if probate of the will is disapproved: If in the course of intestate proceedings pending before a court of first instance it is found it that the decedent had left a last will, proceedings for the probate of the latter should replace the intestate proceedings even if at that stage an administrator had already been appointed, the latter being required to render final account and turn over the estate in his possession to the executor subsequently appointed but this is without prejudice to the fact that should the alleged last will be rejected or is disapproved, the proceeding shall continue -21938-39 May 29, 1970) 1970) as intestacy. (Uriarte v s CFI Of Negr os , G.R. Nos. L -21938-39 Insolvency proceedings and settlement are actions in rem:
Insolvency proceedings end settlement of a decedent ’s estate is both proceedings in rem which are binding the whole world. Consequently, a liquidation of similar import or other equivalent general liquidation must also necessarily be a proceeding in rem so that all interested persons whether known to the parties or not may be bound by such proceeding. (Philippin e Saving Saving s B ank v s Lant in, G.R. G.R. No. No. L -33929 -33929.. Septem Septem ber 2, 1983. 1983. ) )
4.1. 1. JURISDICTION OVER SETTLEMENT OF THE ESTATE.
The Regional Trial Court has jurisdiction over proceedings for the settlement of the estate of a deceased person (probate proceedings) where the gross value of the estate exceeds P300,000 and in Metro Manila where the gross value of the estate exceeds P400,000 . Where the gross value does not exceed P300,000 or P400,000 it would be the 7691 Municipal Trial Court which would have jurisdiction. ( BP 129 and RA 7691 )
Specific rules on settlement prevail over general rules
We read with approval the CA ’s use of statutory construction principle of lex specialis derogate generali, leading to the conclusion that the specific provisions of Section 5, Rule 86 of the Rules of Court should prevail over the general provisions of Section 11, Rule 6 of the Rules of Court; the settlement of the estate of deceased persons (where claims against the deceased should be filed) is primarily governed by the rules on special proceedings, while the rules provided for ordinary claims, including Section 11, Rule 6 of the Rules of Court, merely apply suppletorily . ( Me Me t r o p o l i t an an B a n k & T r u s t ) C o m p a n y v . A b s o l u t e M an an a g e m e n t C o r p o r a t i o n , , G.R. No. 170498. Janu ary 9, 2013 4.1. SETTLEMENT OF ESTATE OF DECEASED PERSONS, VENUE AND PROCESS
A special proceeding for the settlement of an estate is filed and intended to settle the entire estate of the deceased is obvious and elementary ( Vda. De Reyes Reyes vs . CA, G.R. No . L -47027 -47027 Janu ary 27, 1989 ). Probate of the will takes precedence ). over intestate proceedings: Effect if probate of the will is disapproved: If in the course of intestate proceedings pending before a court of first instance it is found it that the decedent had left a last will, proceedings for the probate of the latter should replace the intestate proceedings even if at that stage an administrator had already been appointed, the latter being required to render final account and turn over the estate in his possession to the executor subsequently appointed but this is without prejudice to the fact that should the alleged last will be rejected or is disapproved, the proceeding shall continue -21938-39 May 29, 1970) 1970) as intestacy. (Uriarte v s CFI Of Negr os , G.R. Nos. L -21938-39 Insolvency proceedings and settlement are actions in rem:
Insolvency proceedings end settlement of a decedent ’s estate is both proceedings in rem which are binding the whole world. Consequently, a liquidation of similar import or other equivalent general liquidation must also necessarily be a proceeding in rem so that all interested persons whether known to the parties or not may be bound by such proceeding. (Philippin e Saving Saving s B ank v s Lant in, G.R. G.R. No. No. L -33929 -33929.. Septem Septem ber 2, 1983. 1983. ) )
4.1. 1. JURISDICTION OVER SETTLEMENT OF THE ESTATE.
The Regional Trial Court has jurisdiction over proceedings for the settlement of the estate of a deceased person (probate proceedings) where the gross value of the estate exceeds P300,000 and in Metro Manila where the gross value of the estate exceeds P400,000 . Where the gross value does not exceed P300,000 or P400,000 it would be the 7691 Municipal Trial Court which would have jurisdiction. ( BP 129 and RA 7691 )
4.1. 2 VENUE IN JUDICIAL SETTLEMENT OF ESTATE
The matter of venue, or the particular Court of First Instance where the special proceeding should be commenced, is regulated by former Rule 75, Section 1 of the Rules of Court, now Section 1, Rule 73 of the Revised Rules of Court , which provides that the estate of a decedent inhabitant of the Philippines at the time of his death, whether a citizen or an alien, shall be in the court of first instance in the province in which he resided at the time of his death, and if he is an inhabitant of a foreign country, the court of first instance of any province in which he -21938-39 9 May had estate. (Uriarte v s CFI Of Negro s, G.R. Nos. L -21938-3
29, 1970)
Place of residence of the deceased is for the determination of venue:
The place of residence of the deceased is not an element of jurisdiction over the subject-matter but merely of venue. And it is upon this ground that in the new Rules of Court the province where the estate of a deceased person shall be settled is properly called "venue". (Cuen co v s CA , G.R. No. L-24742 Octob er 26, 1973) The place of residence of the deceased in settlement of estates, probate of will, and issuance of letters of administration does not constitute an element of jurisdiction over the subject matter. As it is merely constitutive of venue (Fule vs . CA, L-40502, N o v e m b e r 29, 1976 ). ). Venue in settlement of the estate waivable:
It is well settled in this jurisdiction that wrong venue is merely a waiveable procedural defect. Moreover, it must be remembered that this Court is not inclined to annul proceedings regularly had in a lower court even if the latter was not the proper venue therefor, if the net result would be to have the same proceedings repeated in some other court of similar jurisdiction; more more so in a case case like the present where where the objection against said said proceedings proceedings is -21938-39 May 29, 1970) 1970) raised too late. (Uriarte vs CA, G.R. Nos. L -21938-39 Exclusionary rule on venue in settlement of the estate:
Even assuming that there is concurrent venue among the Regional Trial Courts of the places where the decedent has residences, the Regional Trial Court first taking cognizance of the settlement of the estate of the decedent, shall exercise jurisdiction to the exclusion of all other courts (Section 1, Rule 73). (Vda. De Chua v s CA . G.R. No. 116835 Marc h 5, 1998)
4.1. 3. EXTENT OF JURISDICTION OF PROBATE COURT Coverage on the extent of the power of the probate court: Issue of ownership not included:
The probate jurisdiction of the former court of first instance or the present regional trial court relates only to matters having to do with the settlement of the estate and probate of wills of deceased persons, and the appointment and removal of administrators, executors, guardians and trustees and does not extend the jurisdiction of a probate court to the determination of questions of ownership that arise during the proceeding. The parties concerned may choose to bring a separate action as a matter of convenience in the preparation or presentation of evidence. (Ramo s vs CA , G.R. No. 42108 Decemb er 29, 1989)
Jurisdiction of probate court to determine whether property belongs to conjugal partnership or exclusive ownership of a party
In the case now before us, the matter in controversy is the question of ownership of certain of the properties involved — whether they belong to the conjugal partnership or to the husband exclusively. This is a matter properly within the jurisdiction of the probate court which necessarily has to liquidate the conjugal partnership in order to determine the estate of the decedent which is to be distributed among his heirs who are all parties to the proceedings. (Leo C. Romero and David Amand o C. Romero vs. Hon. Court of Appeals,
Au rora C. Rom ero and Vittorio C. Romero , G.R. No. 188921, April 18, 2012)
Probate court has a special and limited jurisdiction:
It must be emphasized that the trial court, sitting, as a probate court, has limited and special jurisdiction and cannot hear and dispose of collateral matters and issues which may be properly threshed out only in an ordinary civil action . (Vda. De Manalo vs . CA, G.R. No. 129242. Jan uary 16, 2001)
The authority of the Regional Trial Court, sitting, albeit with limited jurisdiction, as a probate court over the estate of deceased individual, is not a trifling thing. The court's jurisdiction, once invoked, and made effective, cannot be treated with indifference nor should it be ignored with impunity by the very parties invoking its authority. (Romero vs CA, G.R. No. 188921, Apr il 18, 2012)
Issues that may be resolved by the probate court:
In testament to this, it has been held that it is within the jurisdiction of the probate court to (1) approve the sale of properties of a deceased person by his prospective heirs before final adjudication; (2) to determine who are the heirs of the decedent; (3) the recognition of a natural child; (4) the status of a woman claiming to be the legal wife of the decedent; the legality of disinheritance of an heir by the testator; and (5)to pass upon the validity of a waiver of hereditary rights. (Rom ero v s CA , G.R. No. 188921, Ap ril 18, 2012) Determination of heir an issue resolvable by probate court
While the foregoing allegations, if admitted to be true, would consequently warrant the reliefs sought for in the said complaint, the rule that the determination of a decedent ’s lawful heirs should be made in the corresponding special proceeding precludes the RTC, in an ordinary action for cancellation of title and reconveyance, from granting the same. In the case of Heirs of Teofilo Gabatan v. CA, the Court, citing several other precedents, held that the determination of who are the decedent ’s lawful heirs must be made in the proper special proceeding for such purpose, and not in an ordinary suit for recovery of ownership and/or possession, as in this case: “Jurisprudence dictates that the determination of who are the legal heirs of the deceased must be made in the proper special proceedings in court, and not in an ordinary suit for recovery of ownership and possession of property . This must take precedence over the action
for recovery of possession and ownership. The Court has consistently ruled that the trial court cannot make a declaration of heirship in the civil action for the reason that such a declaration can only be made in a special proceeding. Under Section 3, Rule 1 of the 1997 Revised Rules of Court, a civil action is defined as one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong while a special proceeding is a remedy by which a party seeks to establish a status, a right, or a particular fact. It is then decisively clear that the declaration of heirship can be made only in a special proceeding inasmuch as the petitioners here are seeking the establishment of a status or right. ‖ (Heirs o f M a g d a l e n o Y p o n v s . G au d i o s o P o n t e r a s R i c a f o r t e a.k.a. “Gaudioso E. Ypon,” and The Register of Deeds of Toledo City., G.R. No. 198680, July 8,
2013)
The trial court cannot make a declaration of heirship in the civil action for the reason that such a declaration can only be made in a special proceeding. The case at bar is an action for annulment of title, reconveyance with damages, a civil action, whereas matters which involve the settlement and distribution of the estate of a deceased person as well as filiation and heirship partake of the nature of a special proceeding, which requires the application of specific rules as provided for in the Rules of Court. With both parties claiming to be the heirs of Severo Basbas, it is but proper to thresh out this issue in a special proceeding, since Crispiniano and respondent Ricardo seeks to establish his status as one of the heirs entitled to the property in dispute. HEIRS OF VALENTIN BASBAS et al vs. RICARDO BASBAS as represented by EUGENIO BASBAS, G.R. No. 188773, September 10, 2014, J. Perez Nature of the determination of issue of ownership in probate not conclusive merely provisional:
The probate court may pass upon the title thereto but such determination is not conclusive and is subject to the final decision in a separate action regarding ownership which may be instituted by the parties. (Reyes vs M os qued a, G.R. No. L-45262 Ju ly 23, 1990)
The jurisprudence and rule are both to the effect that the probate court "may" provisionally pass upon the question of exclusion, not "should". The obvious reason is the
probate court's limited jurisdiction and the principle that questions of title or ownership, which result to inclusion in or exclusion from the inventory of the property, can only be settled in a separate action. (Pio Bar etto v s. Aa, G.R. No. L -62431-33 Aug us t 31, 1984) It cannot but be conceded that the limited jurisdiction of a probate court prohibits it from determining rights to property left by a decedent which depends on the contract (Goo din v. Cass elm an 200 N.W. 94, 51 N.D. 543).
However, actions of the probate court, in the case at bar, do not refer to the adjudication of rights under the contract entered into by the deceased during his lifetime. It is to be noted that the dealings of the respondent with the court arose out of the latter's bid to sell property under its authority to sell, mortgage or otherwise encumber property of the estate to pay or settle against the estate (Rule 89, Revised Rules o f Cou rt). "[A] probate court or one in charge of proceedings whether testate or intestate cannot adjudicate or determine title to properties claimed to be a part of the estate and which are claimed to belong to outside parties. All that the said court could do as regards said properties is to determine whether they should or should not be included in the inventory or list of properties to be administered by the administrator. " ( De Leon vs . CA, G.R. No. 128781, Aug us t 6, 2002)
Although generally, a probate court may not decide a question of title or ownership, yet if the interested parties are all heirs, or the question is one of collation or advancement, or the parties consent to the assumption of jurisdiction by the probate court and the rights of third parties are not impaired, then the probate court is competent to decide the question of ownership. ( Rom ero v s CA , G.R. No. 188921, April 18, 2012)
4.1.4. POWERS AND DUTIES OF PROBATE COURT In probate proceedings, the court: a) Orders the probate of the will of the decedent (Sec. 3, Rule 77); b)
Grants letters of administration of the party best entitled thereto or to any qualified
applicant (Sec. 5, Rule 79); c) Supervises and control all acts of administration;
Hears and approves claims against the estate of the deceased (Sec. 11, Rule 86); e) Orders payment of lawful debts (Sec. 11, Rule 88); f) Authorizes sale, mortgage or any encumbrance of real estate (Sec. 2, Rule 89); g) Directs the delivery of the estate to those entitled thereto (Sec. 1, Rule 90); h) Issue warrants and processes necessary to compel the attendance of witnesses or to d)
carry into effect their orders and judgments, and all other powers granted them by law (Sec. 3, Rule 73); i) If
a person defies a probate order, it may issue a warrant for the apprehension and imprisonment of such person until he performs such order or judgment, or is released (Sec.
3, Rule 73). Power of supervision and control of the probate court:
"The court which acquires jurisdiction over the properties of a deceased person through the filing of the corresponding proceedings, has supervision and control over the said properties, and under the said power, it is its inherent duty to see that the inventory submitted by the administrator appointed by it contains all the properties, rights and credits which the law requires the administrator to set out in his inventory. In compliance with this duty the court has also inherent power to determine what properties, rights and credits of the deceased should be included in or excluded from the inventory. (De Leon v s CA , G.R. No. 128781, Au gu st 6, 2002) The court acts as trustee and as such, should jealously guard the estate and see to it that it is wisely and economically administered, not dissipated ( T i m b o l v s . Cano , 111 Phil. 923, G.R. No. L -15445, Ap ril 29, 1961 ).
Should an heir or person interested in the properties of a deceased person duly call the court’s attention to the fact that certain properties, rights or credits have been left out in the inventory, it is likewise the court ’s duty to hear the observations, with power to determine if such observations should be attended to or not and if the properties referred to therein belong prima facie to the intestate, but no such determination is final and ultimate in nature as to the ownership of the said properties. (De Leon v s CA , G.R. No. 128781, Au gu st 6, 2002)
4.2. SUMMARY SETTLEMENT OF ESTATES General rule:
When a person dies leaving property, the same should be JUDICIALLY ADMINISTERED and the competent court should appoint a qualified administrator, in the order established in Section 6, Rule 78, in case the deceased left no will, or in case he had left one, should he fail to name an executor therein . (Pereira v s C A, G.R. No. L-81147 Jun e 20, 1989)
Exceptions: 1. Extrajudicial settlement (Section 1, Rule 74) 2. Summary settlement of estates of small value (Section 2, Rule 74) 4.2.1. EXTRAJUDICIAL SETTLEMENT BY AGREEMENT BETWEEN HEIRS, WHEN ALLOWED
As a general rule, when a person dies living property in the Philippine Islands, his
property should be judicially administered and the competent court should appoint a qualified administrator, or in case the deceased left no will, or in case he had left one should he fail to name an executor therein. This rule, however, is subject to the exceptions, such as when the heirs are all of lawful age and there are no debts there is no reason why the estate should be burdened with the cost and expenses of an administrator. (Pereira vs CA, G.R. No. L-81147 Jun e 20, 1989 citing Utulo vs. Pasion vd a. De Garcia, 66 Phil . 303, G.R. No. 45904, Sept emb er 30, 1938)
This court repeatedly held that when a person dies without leaving pending obligations to be paid, his heirs, whether of age or not, are not bound to submit the property to a judicial administration and the appointment of an administrator are superfluous and unnecessary proceedings (Fule vs CA , G.R. No. L-40502 Novemb er 29, 1976)
If the intention were otherwise the framer of the rule would have employed the word shall as was done in other provisions that are mandatory in character. Note that the word may is used not only once but in the whole section which indicates an intention to leave the matter entirely to the discretion of the heirs. (Arcilla vs Montejo, G.R. No. L21725, Nov emb er 29, 1968)
It should be noted that recourse to an administration proceeding even if the estate has no debts is sanctioned only if the heirs have good reasons for not resorting to an action for partition. Where partition is possible, either in or out of court, the estate should not be burdened with an administration proceeding without good and compelling reasons. (Pereira vs CA , G.R. No. L -81147 Ju ne 20, 1989)
Effect of Exclusion of Heirs-Agreement null and void
Hence, in the execution of the Extra-Judicial Settlement of the Estate with Absolute Deed of Sale in favor of spouses Uy, all the heirs of Anunciacion should have participated. Considering that Eutropia and Victoria were admittedly excluded and that then minors Rosa and Douglas were not properly represented therein, the settlement was not valid and binding upon them and consequently, a total nullity. Section 1, Rule 74 of the Rules of Court provides: SECTION 1. Extrajudicial settlement by agreement between heirs. – x x x no extrajudicial settlement shall be binding upon any person who has not participated therein or had no notice thereof. x x x (emphasis supplied). (Neri, at al. vs. Heirs of Hadji Yuso p Uy and Julp ha Ibrahim Uy., G.R. No. 194366, Octob er 10, 2012)
4.2.2. TWO-YEAR PRESCRIPTIVE PERIOD
Extrajudicial settlement is an ex-parte proceeding:
The procedure outlined in Section 1 of Rule 74 of extrajudicial settlement, or by affidavit, is an ex parte proceeding. It cannot by any reason or logic be contended that such settlement or distribution would affect third persons who had no knowledge either of the death of the decedent or of the extrajudicial settlement or affidavit, especially as no mention of such effect is made, either directly or by implication. (Samp ilo v s CA, G.R. No. L-10474, Febru ary 28, 1958)
Two (2) year prescriptive period applies only persons who knew or participated in the extrajudicial settlement:
The provisions of Section 4 of Rule 74, barring distributees or heirs from objecting to an extrajudicial partition after the expiration of two years from such extrajudicial partition, is applicable only to persons who have participated or taken part or had notice of the extrajudicial partition, and, in addition, when the provisions of Section 1 of Rule 74 have been strictly complied with. There is nothing therein, or in its source which shows clearly a statute of limitations and a bar of action against third persons. (Sampilo v s CA, G.R. No. L10474, Febr uary 28, 1958)
4.2.3. AFFIDAVIT OF SELF-ADJUDICATION BY SOLE HEIR If there is only one heir, he may adjudicate to himself the entire estate by means of an affidavit filed in the office of the register of deeds. The parties to an extrajudicial settlement, whether by public instrument or by stipulation in a pending action for partition, or the sole heir who adjudicates the entire estate to himself by means of an affidavit shall file, simultaneously with and as a condition precedent to the filing of the public instrument, or stipulation in the action for partition, or of the affidavit in the office of the register of deeds, a bond with the said register of deeds, in an amount equivalent to the value of the personal property involved as certified to under oath by the parties concerned and conditioned upon the payment of a ny just claim that may be filed under Section 4 of this rule. It shall be presumed that the decedent left no debts if no creditor files a petition for letters of administration within two (2) years after the death of the decedent. (Sec.1, Rule 74)
4.2.4. SUMMARY SETTLEMENT OF ESTATES OF SMALL VALUE, WHEN ALLOWED Factors to consider in the summary settlement of the estate of small value: a) WE uniformly held that for the court to acquire jurisdiction in a petition for
summary settlement of estate under the rules, the requirement that the amount of the estate involved should not exceed P10,000,00 (P6,000.00 under the old rules) is jurisdictional. (Del Ro sario v . Cunanan , L-37903, March 30, 1977 ); b) Decedent died testate or intestate;
c) Petition filed by an interested person; d) Notice published at least once a week for 3 consecutive weeks in a
newspaper of general circulation; e) Hearing of petition held not less than 1 month nor more than 3 months from the date of the LAST publication of notice; f) Payment of such debts of the estate as the court shall find to be due; g) The order of partition or award, if it involves real estate, recorded in the register of deeds; and h) Bond filed with the register of deeds in an amount to be fixed by the court. Bond not required in case when only real property is involved:
No bond is necessary when only real estate is involved because the lien as recorded is sufficient security for any claim which may be filed under Sec 4, that is, when an heir or other person has been unduly deprived of his lawful participation in the estate . 4.2.5. REMEDIES OF AGGRIEVED PARTIES AFTER EXTRAJUDICIAL SETTLEMENT OF ESTATE
Binding effects of extra-judicial settlement:
An extrajudicial settlement despite the publication shall not be binding on any person who has not participated therein or who had no notice of death of the decedent. this is because the procedure in section 1, rule 74 is an ex parte proceeding (Samp ilo v s CA, G.R. No . L-10474, Febru ary 28, 1958)
A SUMMARY SETTLEMENT is likewise NOT BINDING upon heirs or creditors who were not parties therein or had no knowledge thereof. No distribution shall be allowed until payment of the obligations above mentioned has been made or provided for, unless the distributees, or any of them, give a bond, in a sum to be fixed by the court, conditioned for the payment of said obligations within such time as the court directs. In this case, the settlement of Jose, Sr. ’s estate is not yet through and complete albeit it is at the liquidation, partition and distribution stage. From all of the foregoing, it is apparent that the intestate proceedings involving Jose, Sr.’s estate still requires a regular administrator to finally settle the estate and distribute remaining assets to the heirs of the decedent. MARCELO INVESTMENT AND MANAGEMENT CORPORATION, AND THE HEIRS OF EDWARD T. MARCELO, NAMELY, KATHERINE J. MARCELO, ANNA MELINDA J. MARCELO REVILLA, AND JOHN STEVEN J. MARCELO vs. JOSE T. MARCELO, JR., G.R. No. 209651, November 26, 2014, J. Perez REMEDIES OF AN EXCLUDED CREDITOR:
1. Proceed Against the Bond (Section 4, Rule 74 ) a) The unpaid creditor MAY PROCEED against the bond by filing, WITHIN 2 YEARS,
a motion for the payment of his credit in the court wherein such summary settlement was had.
b) AFTER the lapse of the 2 year period, the creditor may NO LONGER
proceed against the bond, BUT can institute an ordinary action against the distributees within the statute of limitations. 2. Petition for Letters of Administration 3. Action to annul a deed of extrajudicial settlement
on the ground of fraud
should be filed within four years from the discovery of fraud. (Regalado , 2008) 4. Proceed Against the Real Property
a) The lien subsists for 2 years. b) The 2-year lien upon the real property distributed by extrajudicial or summary
settlement shall be annotated on the title issued to the distributees and after 2 years will be cancelled by the register of deeds without need of court order (LRC Circular 143) 5) Ordinary Civil Action REMEDIES OF AN EXCLUDED HEIR: 1) Action to compel settlement of estate (Section 4, Rule 74) 2) Action for rescission on the ground of lesion (Art. 1381, par. 1, NCC)
Prescriptive period is 4 years 3) Accion Reivindicatoria 4)10 years, Implied Trust. Annulment on the ground of fraud
When does the prescriptive period of four (4) years begin to run?
Prescriptive period is 4 years. The period of four (4) years therein prescribed did not begin to run until actual discovery of the fraud perpetrated by respondents , which, it is claimed, took place in 1956 or 1957; and that accordingly, said period had not expired when the present action was commenced on November 4, 1958. (Gerona vs. De Guzman, Gr L 19060, 1964)
PERIOD FOR CLAIM OF MINOR OR INCAPACITATED PERSON
If on the date of the expiration of the period of two (2) years prescribed in the preceding section the person authorized to file a claim is a minor or mentally incapacitated, or is in prison or outside the Philippines, he may present his claim within one (1) year after such disability is removed. (Section 5, Rule 75)
4.3. PRODUCTION AND PROBATE OF WILL What is probate of the will?
A judicial act whereby an instrument is adjudged valid and is ordered to be recorded. It is the statutory method of establishing the proper execution of the instrument and giving notice of its contents. The probate of a will by the court having jurisdiction thereof is considered as conclusive as to its due execution and testamentary capacity of the testator (Mercado vs . Santo s, No. 45629, 22 Septem ber 1938).
4.3.1. NATURE OF PROBATE PROCEEDING: The probate of the will is mandatory ( Gu evara vs . Gu evara, 74 Phil. 479 and 98 Phil. 249; Balu yo t vs . Panio, L-42088, May 7, 1976, 71 SCRA 86 ). Consolidation of the intestate proceedings with testate proceedings:
It is anomalous that the estate of a person who died testate should be settled in an intestate proceeding. Therefore, the intestate case should be consolidated with the testate proceeding and the judge assigned to the testate proceeding should continue hearing the two cases. (Rob erts v s. Leon idas, G.R. No. L- 55509 Ap ril 27, 1984) Reason why the will should be probated:
The law enjoins the probate of the Will and public policy requires it, because unless the Will is probated and notice thereof given to the whole world, the right of a person to dispose of his property by Will may be rendered nugatory. (Maninang vs. CA, G.R. No. L57848 Ju ne 19, 1982)
Exceptions: a) The heirs divide the estate according to the will; pay the creditors accordingly so
that none of them may be prejudiced. By permitting partition and division of estate without judicial proceedings would enable the heirs to take over their respective shares in the inheritance without delay and thereby avoid expenses and waste ( M c M i c k i n g v . S y Com bieng , 21 Phil. 219) b) No will shall pass either real or personal property unless it is proved or allowed
in court. We find, that the document may be sustained on the basis of Article 1056 which reads as follows: Art. 1056. If the testator should make a partition of his properties by an act inter vivos, or by win, such partition shall stand in so far as it does not prejudice the legitime of the forced heirs . (Mang-Oy v s CA , G.R. No. L-27421 Septemb er 12, 1986)
Issues that may be resolved in probate proceedings:
As a general rule, courts in probate proceedings are limited only to passing upon the extrinsic validity of the will sought to be probated, the due execution thereof, the testator's testamentary capacity and the compliance with the requisites or solemnities prescribes by law. The question of the intrinsic validity of a will normally comes only after the court has declared that the will has been duly authenticated. (Nufab le vs Nu fabl e, G.R. No. 126950 Ju ly 2, 1999)
In a special proceeding for the probate of a will, the issue by and large is restricted to the extrinsic validity of the will, i.e., whether the testator, being of sound mind, freely executed the will in accordance with the formalities prescribed by law. (Rules of Cour t, Rule 75, Section 1; Rule 76, Section 9.)
Probate court cannot pass upon issue of ownership: Exceptions:
As a rule, the question of ownership is an extraneous matter which the Probate Court cannot resolve with finality. Thus, for the purpose of determining whether a certain property should or should not be included in the inventory of estate properties, the Probate Court may pass upon the title thereto, but such determination is provisional, not conclusive, and is subject to the final decision in a separate action to resolve title. (Pasto r Jr. vs . CA, G.R. No. L-56340 Jun e 24, 1983) EXCEPTION WHEN PROBATE COURT MAY PASS UPON INTRINSIC VALIDITY: 1) Null and void will:
In Nuguid v. Nuguid (17 SCRA 449) cited by the trial court, the testator instituted the petitioner as universal heir and completely preterited her surviving forced heirs. A will of this nature, no matter how valid it may appear extrinsically, would be null and void and separate or latter proceedings to determine the intrinsic validity of the testamentary provisions would be superfluous. (Nepomu ceno v s CA , G.R. No. L-62952 October 9, 1985) 2) Grave abuse of discretion by the probate court: Remedy of certiorari available:
An act done by a Probate Court in excess of its jurisdiction may be corrected by Certiorari . And even assuming the existence of the remedy of appeal, we harken to the rule
that in the broader interests of justice, a petition
for certiorari may be entertained,
particularly where appeal would not afford speedy and adequate relief. ( M an i n a n g v s C A , G.R. No. L-57848 Ju ne 19, 1982)
Doctrine of estoppels not applicable in probate proceedings:
Doctrine of estoppel is not applicable in probate proceedings as the presentation and probate of a will are requirements of public policy, being primarily designed to protect the testator's, expressed wishes, which are entitled to respect as a consequence of the decedent's ownership and right of disposition within legal limits. It would be a non sequitur to allow public policy to be evaded on the pretext of estoppel. (Fernand ez, Et Al. vs. Dim agib a, L-23638, Octo ber 12, 1967)
4.3.2. WHO MAY PETITION FOR PROBATE; PERSONS ENTITLED T O NOTICE The following may petition for the allowance of a will: a) Testator himself during his lifetime b) Heir (person interested in the estate) c) Executor d) Creditor e) Devisee or legatee
Person who will intervene in probate proceedings must have an interest:
It is a well-settled rule that in order that a person may be allowed to intervene in a probate proceeding he must have an interest in the estate, or in the will, or in the property to be affected by it either as executor or as a claimant of the estate (Ngo The Hua vs. Chung Ki at Hu a, Et Al., L-17091, Septem ber 30, 1963 );
Who is an interested party?
An INTERESTED PARTY is one who would be benefited by the estate such as an heir or one who has a claim against the estate such as a creditor. (Sumilan g vs. Ramagosa, 21 S C R A 1398, G.R. No. L- 23135
Decem ber 26, 1967)
4.4. ALLOWANCE OR DISALLOWANCE OF WILL 4.4. 1.
Contents of petition for allowance of will
a) Rule 76, section 2 requires that the petition for allowance of a will must show: "(a) the jurisdictional facts." Such "jurisdictional facts" in probate proceedings, as held by the Court in Fernando vs. Crisostomo " are the death of the decedent, his
residence at the time of his death in the province where the probate court is sitting, or if he is an inhabitant of a foreign country, his having left his estate in such province." (Cuenco vs CA , G.R. No. L -24742 Octo ber 26, 1973)
b) Names, ages and residences of heirs, legatees, and devisees;
c) Probable value and character of the property of the estate; d) Name of person for whom letters are prayed; e) Name
of person having custody of will, if it has not yet been delivered to the court.
(In Th e Matter Of The Petition To Ap pro ve The Will Of Ruperta Palagan as vs. Ern esto Palagan as, G.R. No. 169144, Janu ary 26, 2011)
4.4. 2. GROUNDS FOR DISALLOWING A WILL: What are the grounds for the disallowance of a will? Nature? Issues to be resolved in the probate of a holographic will: a) The will was not executed and attested as required by law; b) The testator was insane or otherwise mentally incapable of making a will at the
time of its execution;
c)
The will was executed through force or under duress or the influence of fear, or threats;
d) The will was procured by undue and improper pressure and influence, on the
part of the beneficiary or of some other person for his benefit; e) The signature of the testator was procured by fraud or trick; f) The testator acted by mistake or did not intend that the instrument he signed should be his will at the time of affixing his signature thereto. (Section 9, Rule 76 of Rules of court and Art 839, New Civil Code ) These lists are exclusive; no other grounds can serve to disallow a will. Thus, in a petition to admit a holographic will to probate, the only issues to be resolved are: (1) whether the instrument submitted is, indeed, the decedent's last will and testament ; (2) whether said will was executed in accordance with the formalities prescribed by law; (3)
whether the decedent had the necessary testamentary capacity at the time the will was executed; and, (4) whether the execution of the will and its signing were the voluntary acts of the decedent. (Ajero vs . CA, G.R. No. 106720 Septem ber 15, 1994)
4.4. 3. REPROBATE OF THE WILL: Duty of the court in reprobate of the will:
Reprobate is specifically governed by Rule 77 of the Rules of Court. In reprobate, the local court acknowledges as binding the findings of the foreign probate court provided its jurisdiction over the matter can be established. (In The Matter Of The Petition To Ap pro ve The Will Of Ru pert a Palagan as vs. Ern esto Palaganas, G.R. No. 169144, Januar y 26, 2011)
a) Requisites before a will proved abroad will be allowed in the Philippines
Article 816 of the Civil Code of the Philippines provides thus:
Art. 816. The will of an alien who is abroad produces effect in the Philippines if made with the formalities prescribed by the law of the place in which he resides, or according to the formalities observed in his country, or in conformity with those which this Code prescribes. (Art. 816 of th e Civil Cod e) Matters to be proved in reprobate of the will:
The evidence necessary for the reprobate or allowance of wills which have been probated outside of the Philippines are as follows: (1) the due execution of the will in accordance with the foreign laws; (2) the testator has his domicile in the foreign country and not in the Philippines ; (3) the will has been admitted to probate in such country ; (4) the fact that the foreign tribunal is a probate court, and (5) the laws of a foreign country on procedure and allowance of wills . (De Perez vs. Tolete, G.R. No. 76714 Ju ne 2, 1994) Duty of proving foreign laws in reprobate of the will: Reason:
The necessity of presenting evidence on the foreign laws upon which the probate in the foreign country is based is impelled by the fact that our courts cannot take judicial notice of them ( P h i l i p p i n e C o m m e r c i a l a n d I n d u s t r i a l B a n k v s . Esco lin, 56 Scra 266 G.R. Nos. L-27860 and L -27896 March 29, 1974) . Duty of the court in case a will is presented for reprobate:
The rule that the court having jurisdiction over the reprobate of a will shall "cause notice thereof to be given as in case of an original will presented for allowance" (Revised Rules of Court, Rule 27, Section 2) means that with regard to notices, the will probated abroad should be treated as if it were an "original will" or a will that is presented for probate for the first time. (De Perez vs. Tolete, G.R. No. 76714 Jun e 2, 1994) Where to make the administration of property?
When a person dies intestate owning property in the country of his domicile as well as in a foreign country, administration is had in both countries. (B.E. Jo hannes v s. Harvey, G.R. No. 18600, March 9, 1922)
Principal/domiciliary administration vs. Ancillary administration:
That which is granted in the jurisdiction of decedent's last domicile is termed the principal/ domiciliary administration , while any other administration is termed the ancillary administration . The ancillary administration is proper, whenever a person dies, leaving in a country other than that of his last domicile, property to be administered in the nature of assets of the deceased liable for his individual debts or to be distributed among his
heirs." (Testate
Estate of Idonah Perki ns vs Bengu et Conso lidated, G.R. No. L- 23145,
Nov emb er 29, 1968)
4.4.4. EFFECTS OF PROBATE: a) The will shall be treated as if originally proved and allowed in Philippine courts; (De Perez vs . Tolete, G.R. No. 76714 Ju ne 2, 1994)
b) Letters testamentary or administration with a will annexed shall extend to all
estates of the Philippines;
c) After payment of just debts and expenses of administration, the residue of the
estate shall be disposed of as provided by law in cases of estates in the Philippines belonging to persons who are inhabitants of another state or country (Section 4, Rule 77).
4.5. LETTERS TESTAMENTARY AND OF ADMINISTRATION 4.5. 1. WHEN AND TO WHOM LETTERS OF ADMINISTRATION GRANTED The following may administer the estate of a deceased: 1. Executor 2. Administrator
WHO ARE INCOMPETENT TO SERVE AS EXECUTORS OR ADMINISTRATORS
No person is competent to serve as executor or administrator who: (a) Is a minor; (b) Is not a resident of the Philippines; and (c) Is in the opinion of the court unfit to execute the duties of the trust by reason of
i.)drunkenness, ii.) improvidence, or Iii.)want of understanding or integrity, or iv.) by reason of conviction of an offense involving moral turpitude. (Section 1, Rule 78) v.) Antagonistic Interest. "(I)n this jurisdiction, one is considered to be unsuitable for appointment as administrator when he has adverse interest of some kind of hostility to those immediately interested in the estate.". (Medin a vs . CA, G.R. No. L -34760,
Sept emb er 28, 1973)
Determination of executor or administrator discretionary upon the court:
The Rules of Court gives the lower court the duty and discretion to determine whether in its opinion an individual is unfit to serve as an executor. The sufficiency of any ground for removal should thus be determined by the said court, whose sensibilities are, in the first place, affected by any act or omission on the part of the administrator not conformable to or in disregard of the rules of orders of the court. (Matute vs . Cour t Of Ap peals , No. L- 26751, Jan uar y 31, 1969, 26 SCRA 768, 784)
Choice of executor prerogative of the testator: The choice of his executor is a precious prerogative of a testator, a necessary concomitant of his right to dispose of his property in the manner he wishes. The
curtailment of this right may be considered as a curtailment of the right to dispose and as the rights granted by will take effect from the time of death, the management of his estate by the administrator of his choice should be made as soon as practicable, when no reasonable objection to his assumption of the trust can be interposed any longer. (RP vs. Marc os Ii, G.R. Nos. 130371 &130855, Aug us t 4, 2009)
4.5. 2. ORDER OF PREFERENCE Order of preference in the appointment of a regular administrator:
Section 6, Rule 78 of the Rules of Court lists the order of preference in the appointment of an administrator of an estate: SEC. 6. When and to whom letters of administration granted. – If no executor is named in the will, or the executor or executors are incompetent, refuse the trust, or fail to give bond, or a person dies intestate, administration shall be granted: (a) To the surviving husband or wife, as the case may be, or next of kin, or
both, in the discretion of the court, or to such person as such surviving husband or wife, or next of kin, requests to have appointed, if competent and willing to serve; (b) If such surviving husband or wife, as the case may be, or next of kin,
or the person selected by them, be incompetent or unwilling, or if the husband or widow, or next of kin, neglects for thirty (30) days after the death of the person to apply for administration or to request that administration be granted to some other person, it may be granted to one or more of the principal creditors, if competent and willing to serve;
(c) If there is no such creditor competent and willing to serve, it may be
granted to such other person as the court may select.
However, the order of preference is not absolute for it depends on the attendant facts and circumstances of each case and it has been long held that the selection of an administrator lies in the sound discretion of the trial court. (In Th e Matter Of The In t e s t a t e Es t a t e O f C r i s t in a A g u i n a l d o - S u n t ay ; E m i l i o A.M. Sun tay III vs . Coju ang co -Sun tay, G.R. No . 183053, Ju ne 16, 2010)
Factor to consider in the appointment of administrator:
The paramount consideration in the appointment of an administrator over the estate of a decedent is the prospective administrator ’s interest in the estate . This is the same consideration which Section 6, Rule 78 takes into account in establishing the order of preference in the appointment of administrator for the estate. The rationale behind the rule is that those who will reap the benefit of a wise, speedy and economical administration of the estate, or, in the alternative, suffer the consequences of waste, improvidence or mismanagement, have the highest interest and most influential motive to administer the estate correctly. In all, given that the rule speaks of an order of preference, the person to be appointed administrator of a decedent ’s estate must demonstrate not only an interest in the estate, but an interest therein greater than any other candidate . (Emilio A .M. Sun tay III vs . Isab el Coju ang co -Sunt ay., G.R. No. 183053, Octo ber 10, 2012)
In the appointment of the administrator of the estate of a deceased person, the principal consideration reckoned with is the interest in said estate of the one to be appointed as administrator. The underlying assumption behind this rule is that those who will reap the benefit of a wise, speedy, economical administration of the estate, or, on the other hand, suffer the consequences of waste, improvidence or mismanagement, have the highest interest and most influential motive to administer the estate correctly . (Gonzales vs.
Ag uinald o, G.R. No. 74769 Septemb er 28, 1990)
When can the court appoint an administrator if the executor is disqualified, refused to assume the trust, etc.?
The rule is that if no executor is named in the will, or the named executor or executors are incompetent, refuse the trust, or fail to give bond, or a person dies intestate, the court must appoint an administrator of the estate of the deceased who shall act as representative not only of the court appointing him but also of the heirs and the creditors of the estate. In the exercise of its discretion, the probate court may appoint one, two or more co-administrators to have the benefit of their judgment and perhaps at all times to have different interests represented . (Gonzales v s. Ag uinaldo , G.R. No. 74769 Sept emb er 28, 1990)
Appointment of co-administrators:
Where the estate is large, to appoint two or more administrators of such estate to have different interests represented and satisfied, and furthermore, to have such representatives work in harmony for the best interests of such estate. (Matute v s. CA, G.R. No . 26751, Janu ary 31, 1969)
Appointment of co-administrator is allowed but as an exception
It is to this requirement of observation of the order of preference in the appointment of administrator of a decedent ’s estate, that the appointment of co-administrators has been allowed, but as an exception. We again refer to Section 6(a) of Rule 78 of the Rules of Court which specifically states that letters of administration may be issued to both the surviving spouse and the next of kin. In addition and impliedly, we can refer to
Section 2 of Rule 82 of the Rules of Court which say that ―x x x [w]hen an executor or administrator dies, resigns, or is removed, the remaining executor or administrator may administer the trust alone, x x x. ‖ In a number of cases, we have sanctioned the appointment of more than one administrator for the benefit of the estate and those interested therein. We recognized that the appointment of administrator of the estate of a decedent or the determination of a person’s suitability for the office of judicial administrator rests, to a great extent, in the sound judgment of the court exercising the power of appointment. Under certain circumstances and for various reasons well-settled in Philippine and American jurisprudence, we have upheld the appointment of co-administrators: (1) to have the benefits of their judgment and perhaps at all times to have different interests represented; (2) where justice and equity demand that opposing parties or factions be represented in the management of the estate of the deceased; (3) where the estate is large or, from any cause, an intricate and perplexing one to settle;(4) to have all interested persons satisfied and the representatives to work in harmony for the best interests of the estate; and when a person entitled to the administration of an estate desires to have another competent person associated with him in the office. (Emilio A .M. Suntay III vs. Isabel Cojuan gco Sun tay., G.R. No . 183053, Octo ber 10, 2012)
4.5. 3. OPPOSITION TO ISSUANCE OF LETTERS TESTAMENTARY; SIMULTANEOUS FILING OF PETITION FOR ADMINISTRATION Who may oppose the petition for issuance of letter administration?
Only an interested person may oppose the petition for issuance of letters of administration. An interested person is one who would be benefited by the estate such as an
heir, or one who has a claim against the estate, such as a creditor; his interest is material and direct, and not one that is only indirect or contingent. (Vda. De Chua v s. CA. G.R. No. 116835 March 5, 1998)
Who is an interested party?
An interested party has been defined in this connection as one who would be benefited by the estate, such as an heir, or one who has a claim against the estate, such as a creditor (Intestate Estate o f Ju lio Magb anw a 40 Off. Gaz. 1171 ). Nature of the interest?
The interest required in order that a person may be a party thereto must be material and direct, and not merely indirect or contingen t. In the case at bar, Petitioner ’s interest in the estate of the deceased Maria V. Lindayag was disputed, through a motion to dismiss her petition, by the surviving spouse on the ground that said deceased was survived by him and by three legally adopted children — thus excluding petitioner who was the deceased ’s sister, as an heir. (Saguinsin vs. Lin dayag , G.R. No. L-17759. Decem ber 17, 1962 )
Lack of interest is a ground for the dismissal of the action on the ground of lack legal capacity to sue:
Of course, since the opening sentence of the section requires that the petition must be filed by an interested person, it goes without saying that a motion to dismiss may lie not on the basis of lack of jurisdiction on the part of the court, but rather on the ground of lack of legal capacity to institute the proceedings. (Pilipin as Shell v s. Dum lao, G.R. No. 44888. Febr uar y 7, 1992)
4.5. 4. POWERS AND DUTIES OF EXECUTORS AND ADMINISTRATORS; RESTRICTIONS ON THE
POWERS: 1) To have access to, and examine and take copies of books and papers
relating to the partnership in case of a deceased partner; 2) To examine and make invoices of the property belonging to the partnership in case of a deceased partner; 3) To
make improvements on the properties under administration with the necessary court approval except for necessary repairs; 4) To possess and manage the estate when necessary: a) payment of debts; and
b) payment of expenses of administration;
To maintain in tenantable repairs houses and other structures and fences and to deliver the same in such repair to the heirs or devisees when directed so to do by the court. 5)
Duty to account by the executor or administrator mandatory:
The duty of an executor or administrator to render an account is not a mere incident of an administration proceeding which can be waived or disregarded as it is a duty that has to be performed and duly acted upon by the court before the ad ministration is finally ordered closed and terminated, to the end that no part of the decedent's estate be left unaccounted for. The fact that the final accounts had been approved does not divest the court of jurisdiction to require supplemental accounting. (Vda. De Chua vs . CA. G.R. No. 116835 March 5, 1998)
Purpose of the bond by the administrator:
Pursuant to Section 1 of Ru le 81 , the bond secures the performance of the duties and obligations of an administrator namely: (1) to administer the estate and pay the debts; (2) to perform all judicial orders; (3) to account within one (1) year and at any other time when required by the
probate court; and (4) to make an inventory within three (3) months.
More specifically, per S e ct i o n 4 of the same Rule, the bond is conditioned on the faithful execution of the administration of the decedent ’s estate requiring the special administrator to: (1) make and return a true inventory of the goods, chattels, rights, credits, and
estate of the deceased which come to his possession or knowledge; (2) truly account for such as received by him when required by the court; and (3) deliver the same to the person appointed as executor or regular administrator, or to such other person as may be authorized to receive them. Verily, the administration bond is for the benefit of the creditors and the heirs, as it compels the administrator, whether regular or special, to perform the trust reposed in, and discharge the obligations incumbent upon, him, therefore, it should not be considered as part of the necessary expenses chargeable against the estate, not being included among the acts constituting the care, management, and settlement of the estate. ( Oc a m p o v s . Ocam po , G.R. No. 187879, Ju ly 5, 2010)
4.5. 5. APPOINTMENT OF SPECIAL ADMINISTRATOR:
Order of preference in the appointment of regular administrator may be considered in the appointment of a special administrator:
Nothing is wrong for the judge to consider the order of preference in the appointment of a regular administrator in appointing a special administrator. After all, the consideration that overrides all others in this respect is the beneficial interest of the appointee in the estate of the decedent (Fule vs. CA , G.R. No. L- 40502 Novem ber 29, 1976)
Principal object of the appointment of a special administrator:
The principal object of the appointment of a temporary administrator is to preserve the estate until it can pass to the hands of a person fully authorized to administer it for the benefit of creditors and heirs, pursuant to Section 2 of Rule 80 of the Rules of Court. (Ocamp o v s. Ocamp o, G.R. No. 187879, Ju ly 5, 2010)
Nature of the duty of the special administrators:
The Special Administrators that while they may have respective interests to protect, they are officers of the Court subject to the supervision and control of the Probate Court and are expected to work for the best interests of the entire estate, its smooth administration, and its earliest settlement. (Coro na vs . CA, G.R. No. L- 59821 Aug ust 30, 1982) When can a special administrator be appointed?
The specific and limited powers of special administrators and that their appointment merely temporary and subsists only until a regular administrator is duly appointed (since Rule 80, section 1 provides for the appointment of a special administrator as a caretaker only "when there is delay in granting letters testamentary or of administration by any cause") (Medina vs . Beda Go nzales, G.R. No. L-34760 September 28, 1973)
Appointment of a special administrator discretionary:
The discretion to appoint a special administrator or not lies in the probate court but that is no authority for the judge to become partial, or to make his personal likes and dislikes prevail over, or his passions to rule, his judgment but such discretion must be based on reason, equity, justice and legal principle. There is no reason why the same fundamental and legal principles governing the choice of a regular administrator should not be taken into account in the appointment of a special administrator. (Fule v s. CA, G.R. No. L-40502 Nov emb er 29, 1976)
Choice of the executrix of special administrator deserves highest consideration:
The executrix's choice of Special Administrator, considering her own inability to serve and the wide latitude of discretion given her by the testatrix in her Will (Annex "A-1"), is entitled to the highest consideration.. (Corona v s CA, G .R. No. L-59821 Augu st 30, 1982)
4.5. 6. GROUNDS FOR REMOVAL OF ADMINISTRATOR: 1.) neglects to render his account and settle the estate according to law, or 2) neglects to perform an order or judgment of the court, or 3.) neglect to perfom a duty expressly provided by these rules, or 4.) absconds, or becomes insane, or otherwise incapable or unsuitable to discharge the trust, the court may remove him, or, in its discretion, may permit him to resign. (Section 2, Rule 82) Other grounds for the removal of the administrator discretionary upon the court:
The probate court may appoint or remove special administrators based on grounds other than those enumerated in the Rules at its discretion, such that the need to first pass upon and resolve the issues of fitness or unfitness and the application of the order of preference under Section 6 of Rule 78, as would be proper in the case of a regular administrator, do not obtain. (Ocampo vs. Ocam po, G.R. No. 187879, July 5, 2010) Nature of the powers of administrator:
Administrators have such an interest in the execution of their trust as to entitle them to protection from removal without just cause. Hence, Section 2 of Rule 82 of the Rules of Court provides the legal and specific causes authorizing the court to remove an administrator. (Gonzales v s. Agu inald o, G.R. No. 74769 Septem ber 28, 1990) Trial court’s action of removing administrator deserves respect by the appellate court except when there is an error or grave abuse of discretion:
The sufficiency of any ground for removal should thus be determined by said court, whose sensibilities are, in first place, affected by any act or omission on the part of the administrator not conformable to or in disregard of the rules or the orders of the court. Consequently, appellate tribunals are disinclined to interfere with the action taken by a probate court in the matter of the removal of an executor or administrator unless positive error or gross abuse of discretion is shown . (Matute v s. CA, No . L- 26751, Janu ary 31, 1969, 26 Scra 768, 784)
Grounds for removal of administrator must be proved by evidence:
While it is conceded that the court is invested with ample discretion in the removal of an administrator, it however must have some fact legally before it in order to justify a removal. There must be evidence of an act or omission on the part of the administrator not conformable to or in disregard of the rules or the orders of the court, which it deems sufficient or substantial to warrant the removal of the administrator. (Gonzales vs. Ag uinald o, G.R. No. 74769 Septemb er 28, 1990)
Effects of revocation of letters testamentary or administration:
It is elementary that the effect of revocation of letters testamentary or of administration is to terminate the authority of the executor or administrator, but the acts of the executor or administrator, done in good faith prior to the revocation of the letters, will be protected, and a similar protection will be extended to rights acquired under a previous grant of administration. (Vda. De Bacaling vs. L aguna, G.R. No. L -26694 Decemb er 18, 1973)
Order of appointment of special administrator an interlocutory order subject to certiorari:
The appointment or removal of special administrators, being discretionary, is thus interlocutory and may be assailed through a petition for certiorari under Rule 65 of the Rules of Court. (Ocam po vs. Ocam po , G.R. No. 187879, Ju ly 5, 2010) 4.6. CLAIMS AGAINST THE ESTATE Upon the death of a person, all his property is burdened with all his debts, his death creating and equitable lien thereon for the benefit of the creditors. Such lien continues until all debts are extinguished either by the payment, prescription, or satisfaction in one of the modes recognized by law. (Sui Lio ng vs . Taysan , G.R. No. L-4777, Nov emb er 11, 1908 )
4.6.1. TIME WITHIN WHICH CLAIMS SHALL BE FILED; EXCEPTIONS Statute of non-claims:
Section 2, Rule 86, which provides: Sec. 2. Time within which claims shall be filed . — In the notice provided in the preceding section, the court shall state the time for the filing of claims against the estate, which shall not be more than twelve (12) nor less than six (6) months after the date of the first publication of the notice . However, at anytime before an order of distribution is entered, on application of a creditor who has failed to file his claim within the time previously limited, the court may, for cause shown and on such terms as are equitable, allow such claim to be filed within a time not exceeding one (1) months.
Purpose of the fixing of the period of claims:
The purpose of the law, in fixing a period within which claims against an estate must be presented, is to insure a speedy settlement of the affairs of the deceased person and the early delivery of the property to the person entitled to the same. (Heirs o f Pizarro vs. Con solacio n, G.R. No. L -51278 May 9, 1988)
Purpose of the presentation of the claims against the estate:
The purpose of presentation of claims against decedents of the estate in the probate court is to protect the estate of deceased persons to enable the executor or administrator will be able to examine each claim and determine whether it is a proper one which should be allowed. Further, the primary object of the provisions requiring presentation is to apprise the administrator and the probate court of the existence of the claim so that a proper and timely arrangement may be made for its payment in full or by pro-rata portion in the due course of the administration. (Estate of Olave v s. Reyes, G.R. No. L-29407 Ju ly 29, 1983)
4.6.2. CLAIMS AGAINST THE ESTATE: The following are money claims which can be charged against the estate: 1. All claims for money against the decedent, arising from contract,
express or implied, whether the same be due, not due, or contingent; 2. All claims for funeral expenses; 3. All claims for expenses for the last sickness of the decedent; and 4. Judgment for money against the decedent. ( Section 5, Rule 86 ) What does the word “claims” connotes?
The word "claims" as used in statutes requiring the presentation of claims against a decedent's estate is generally construed to mean debts or demands of a pecuniary nature which could have been enforced against the deceased in his lifetime and could have been reduced to simple money judgments; and among these are those founded upon contract. (Gut ierrez vs. Bar etto -Datu, G.R. No. L-17175, Ju ly 31, 1962)
Actions that does not survives the death of the party: Rationale:
reads:
This situation brings to the fore a consideration of Section 21, Rule 3 of the Rules of Court, which
SEC. 21. Where claim does not survive . — When the action is for recovery of money, debt or interest thereon, and the defendant dies before final judgment in the Court of First Instance, it shall be dismissed to be prosecuted in the manner especially provided in these rules. ( Section 21, Rule 3 of the Ru les of Co urt) The Philosophy behind the rule which provides for the dismissal of the civil case is that, upon the death of defendant, all money claims should be filed in the testate or interstate proceedings "to avoid useless duplicity of procedure." (Ignaci o vs . Pamb usc o., G.R. No . L-18936, May 23, 1967)
Money claims arising from contract against the estate is an action that survives:
Generally, death of either the creditor or the debtor does not extinguish the obligation and only obligations that are personal or are identified with the persons themselves are extinguished by death. Section 5 of Rule 86 of the Rules of Court expressly allows the prosecution of money claims arising from a contract against the estate of a deceased debtor as these claims are not actually extinguished. (Strongho ld Insurance vs. Repu blic -Asah i, G.R. No. 147561, Ju ne 22, 2006)
Claims for taxes survive the death of the decedent:
Claims for taxes may be collected even after the distribution of the decedent's estate among his heirs who shall be liable therefor in proportion of their share in the inheritance. (G o v e r n m e n t o f t h e P h i l i p p i n e s v s . P a m i n t u a n , 5 5 P h i l . 1 3 ) Reason for the rule:
The reason for the more liberal treatment of claims for taxes against a decedent's estate in the form of exception from the application of the statute of non-claims, is not hard to find. Taxes are the lifeblood of the Government and their prompt and certain availability are imperious need. (Vera vs. Hon . Fern and ez, G.R. No. L-31364 March 30, 1979) Claims against a deceased surety on the performance bond is a claim which survive:
Death is not a defense that he or his estate can set up to wipe out the obligations under the performance bond. Consequently, petitioner as surety cannot use his death to escape its monetary obligation under its performance bond. ( St r o n g h o l d I n s u r a n c e v s . Repu blic -Asah i, G.R. No. 147561, Ju ne 22, 2006)
Claims include quasi-Contract and contingent claims
In Maclan v. Garcia, Maclan filed a civil case to recover from Ruben Garcia the necessary expenses he spent as possessor of a piece of land. Garcia acquired the land as an
heir of its previous owner, he set up the defense that this claim should have been filed in the special proceedings to settle the estate of his predecessor. Maclan, on the other hand, contended that his claim arises from law and not from contract, express or implied. Thus, it need not be filed in the settlement of the estate of Garcia ’s predecessor, as mandated by Section 5, Rule 87 of the Rules of Court (now Section 5, Rule 86).
The court held under these facts that a claim for necessary expenses spent as previous possessor of the land is a kind of quasi-contract. Citing Leung Ben v O’Brien, it explained that the term ―implied contracts,‖ as used in our remedial law, originated from the common law where obligations derived from quasi-contracts and from law are both considered as implied contracts. Thus, the term quasi-contract is included in the concept ―implied contracts‖ as used in the Rules of Court. Accordingly, the liabilities of the deceased arising from quasi-contracts should be filed as claims in the settlement of his estate, as provided in Section 5, Rule 86 of the Rules of Court. A distinctive character of Metrobank ’s fourth-party complaint is its contingent nature – the claim depends on the possibility that Metrobank would be adjudged liable to AMC, a future event that may or may not happen. This characteristic unmistakably marks the complaint as a contingent one that must be included in the claims falling under the terms of Section 5, Rule 86 of the Rules of Court. (Metropolitan Bank & Trust Comp any v. Absolu te M a n a g e m e n t Co r p o r a t i o n , G.R. No. 170498. Janu ary 9, 2013)
4.6.3. CLAIM OF EXECUTOR OR ADMINISTRATOR AGAINST THE ESTATE Remedies of a creditor:
The contract made between the administrator and the lawyer does not bind the estate to such an extent that the lawyer can maintain an action against it and recover a judgment which is binding upon it. In such a case the creditor has two remedies: (1) He can prosecute an action against the administrator as an individual. If
judgment is rendered against the administrator and it is paid by him, when he presents his final account to the Court of First Instance as such administrator he can include the amount so paid as an expense of administration. The creditor can also (2) Present a petition in the proceeding relating to the settlement of the estate,
asking that the court, after notice to all persons interested, allow his claim and direct the administrator to pay it as an expense of administration. Whichever course is adopted the heirs and other persons interested in the estate will have a right to inquire into the necessity for making the contract and the value of the work performed by the attorney." (Ramo s v s. Bid in, G.R. No . L -53650 May 28, 1988)
Causal relation between the monetary claims and the acts of administration:
The rule is that where the monetary claim against the administrator has a relation to his acts of administration in the ordinary course thereof, such claims can be presented for payment with the court where a special proceeding for the settlement of the estate is pending, although said claims were not incurred by the deceased during his lifetime and collectible after his death. (Quirino vs. Gor osp e, G.R. No. L-58797, January 31, 1989)
4.6.4. PAYMENT OF DEBTS Procedure for the payment of debts:
The proper procedure allowed by the Rules of Court is for the court to order the sale of personal estate or the sale of mortgaged of real property of the deceased and all debts or expenses of administration should be paid out of the proceeds of the sale or mortgage. The order for the sale or mortgage should be issued upon motion of the administrator and with the written notice to all the heirs, legatees and devisees residing in the Philippines, according to Rule 89, section 3, and Rule 90, section 2. (Al dam iz vs. CFI, G.R. No . L-2360, Decemb er 29, 1949 ) Action against a distributee of the debtor ’s assets by the creditor based on monetary claims:
The only instance wherein a creditor can file an action against a distributee of the debtor's asset is under Section 5, Rule 88 of the Rules of Court. The contingent claims must first have been established and allowed in the probate court before the creditors can file an action directly, against the distributes, such is not the situation in the case at bar. (De Bau tista v s. De Guzm an, G.R. No. L-28298 Novem ber 25, 1983)
Instances when the probate court can issue writ of execution: Exclusive:
The circumstances that the Rules of Court expressly specifies that the probate court may issue execution (1) to satisfy (debts of the estate out of) the contributive shares of devisees,
legatees and heirs in possession of the decedent's assets (Sec. 6. Rule 88), (2) to enforce payment of the expenses of partition (Sec. 3, Rule 90), and (3)
142)
to satisfy the costs when a person is cited for examination in probate proceedings
(Sec. 13, Rule
Under the rule of inclusion unius est exclusion alterius, above cited instances are the only circumstances when probate court can issue a writ of execution. (Pastor , Jr. vs. CA,
G.R. No. L-56340 Ju ne 24, 1983)
4.7. ACTIONS BY AND AGAINST EXECUTORS AND ADMINISTRATORS
4.7.1. ACTIONS THAT MAY BE BROUGHT AGAINST EXECUTORS AND ADMINISTRATORS
The only actions that may be instituted against the executor or administrator independently of the testate or intestate proceedings are: 1) Recovery of real or personal property or any interest therein from the estate; 2) Enforcement of a lien thereon; 3) Action to recover damages for an injury to person or property, real or personal; and 4) Action
to recover damages for breach of contract entered into by the decedent, but committed by the administrator, which is personal to him (Gutier rez vs. Barreto-Datu, G.R. No . L-17175, July 31, 1962). Claim by the administrator against third person is by way of an action not by motion:
"When the demand is in favor of the administrator and the party against whom it is enforced is a third party, not under the court's jurisdiction, the demand cannot be by mere motion by the administrator, but by an independent action against the third person." Matters affecting property under judicial administration may not be taken cognizance of by the court in the course of intestate proceedings, if the " interests of third persons are prejudiced ". (Dela Cruz vs . Camo n, G.R. No. L -21034, Apr il 30, 1966) When does the liability of an administrator for tax payment begin?
That "the assessment is deemed made when the notice to this effect is released, mailed or sent to the taxpayer for the purpose of giving effect to said assessment." It appearing that the person liable for the payment of the tax, in this case the administrator, did not receive the assessment, the assessment could not become final and executory. (R P vs . Dela Rama, G.R. No. L-21108, Nov ember 29, 1966)
Monetary claims against the estate?
It is apparent that actions for damages caused by tortious conduct of a defendant survive the death of the latter. Under Rule 87, section 5 , the actions that are abated by death are: (1) claims for funeral expenses and those for the last sickness of the decedent; (2) judgments for money; and (3) "all claims for money against the decedent, arising from contract express or implied ".
It is not enough that the claim against the deceased party be for money, but it
must arise from "contract express or implied", and these words (also used by the Rules in connection with attachments and derived from the common law) were construed to include all purely personal obligations other than those which have their source in delict or tort . (Ag uas v.s Llem os, G.R. No. L-18107, Aug ust 30, 1962) Action that survive against the executor or administrator: Rule 88, sectio n 1 , enumerates
actions that survive against a decedent's executors or administrators, and they are: (1) actions to recover real and personal property from the estate; (2) actions to enforce a lien thereon; and (3) actions to recover damages for an injury to person or property.
When heirs may act in place of the Administrator: 1) No appointed administrator yet.
Section 2 of Rule 87 of the same Rules, which also deals with administrators, states: ―Sec. 2. Executor or administrator may bring or defend actions which survive. - For
the recovery or protection of the property or rights of the deceased, an executor or administrator may bring or defend, in the right of the deceased, actions for causes which survive.‖ When no administrator has been appointed, as in this case, there is all the more reason to recognize the heirs as the proper representatives of the deceased (Go Chan vs. You ng , G.R. No. 131889, March 12, 2001)
Even if there is an appointed administrator, jurisprudence recognizes two exceptions, viz : (2) if the executor or administrator is unwilling or refuses to bring suit; and
(3) when the administrator is alleged to have participated in the act complained
[31]
of and he is made a party defendant. Evidently, the necessity for the heirs to seek judicial relief to recover property of the estate is as compelling when there is no appointed administrator, if not more, as where there is an appointed administrator but he is either disinclined to bring suit or is one of the guilty parties himself. All told, therefore, the rule that the heirs have no legal standing to sue for the recovery of property of the estate during the pendency of administration proceedings has three exceptions, the third being when there is no appointed administrator such as in this case. (Rioferi o v s. CA, G.R. No. 129008. Jan uary 13, 2004 )
4.7.2. REQUISITES BEFORE CREDITOR MAY BRING AN ACTION FOR RECOVERY OF PROPERTY
FRAUDULENTLY CONVEYED BY THE DECEASED
1) There is DEFICIENCY of assets in the hands of an executor or administrator
for the payment of debts and expenses of administration;
The deceased in his lifetime had made or attempted to make a FRAUDULENT CONVEYANCE of his property or had so conveyed such property that by law the conveyance 2)
would be void as against his creditors; 3) The subject of the attempted conveyance would be liable to ATTACHMENT in his lifetime; 4) The executor or administrator has shown NO DESIRE TO FILE the action or failed to
institute the same within a reasonable time; 5) LEAVE is granted by the court to the creditor to file the action; 6) A BOND is filed by the creditor; 7)
The action by the creditor is in the NAME of the executor or administrator.
(Section
10, Rule 87) Power of supervision and control of the probate court over properties of the decedent:
The court which acquires jurisdiction over the properties of a deceased person through the filing of the corresponding proceedings has supervision and control over these properties and in compliance with this duty, the court also has the inherent power to determine what properties, rights and credits of the deceased the administrator should include or exclude in the inventory. (Chua vs. Ab solu te Management Co rp., G.R. No. 144881, Octo ber 16, 2003)
Power to recover properties against third person belongs to the administrator not the court:
The trial court has no authority to decide whether the properties, real or personal, belong to the estate or to the persons examined. If after such examination there is good reason to believe that the person examined is keeping properties belonging to the estate, then the administrator should file an ordinary action in court to recover the same. (Chua vs. Ab so lute Manag ement Corp ., G.R. No. 144881, Octob er 16, 2003)
Issuance of a writ of attachment must be for the protection of the estate not of the creditor:
Any writ of attachment necessary to secure the judgment must be related to the protection of the estate. The writ may not issue if only to protect the personal interests of the private respondent as a creditor of that estate. (Gruenb erg v s. CA, G. R. No. L-45948 Sept emb er 10, 1985)
4.8. DISTRIBUTION AND PARTITION 4.8.1. LIQUIDATION
What is administration? Purpose? Administration is for the purpose of liquidation of the estate and distribution of the
residue among the heirs and legatees. And liquidation means the determination of all the assets of the estate and payment of all the debts and expenses . (Luzon Surety vs Quebrar, G.R. No. L-40517 Janu ary 31, 1984)
When can distribution of the estate be done?
No distribution shall be allowed until the payment of the obligations above-mentioned has been made or provided for, unless the distributees, or any of them, give a bond, in a sum to be fixed by the court, conditioned for the payment of said obligations within such time as the court directs. (Estate Of Ru iz vs . CA, G.R. No. 118671, January 29, 1996)
How will the distribution of the estate properties be done?
In settlement of estate proceedings, the distribution of the estate properties can only be made: (1) after all the debts, funeral charges, expenses of administration, allowance
to the widow, and estate tax have been paid; or
before payment of said obligations only if the distributees or any of them gives a bond in a sum fixed by the court conditioned upon the payment of said obligations within such time as the court directs, or when provision is made to meet those obligations. (Castillo (2)
v. Cast illo, 124 Ph il. 485 [1966])
Estate tax must be paid before distribution of estate properties:
The
estate tax is one of those obligations that mu st be paid before distributio n o f the estate . If not yet paid, the rule requires that the distributees post a bond or make such
provisions as to meet the said tax obligation in proportion to their respective shares in the inheritance. (Estate Of Ru iz vs. CA , G.R. No. 118671, Jan uary 29, 1996) Declaration of heirs can be made even before the satisfaction of the obligation chargeable to the estate:
What the court is enjoined from doing is the assignment or distribution of the residue of the deceased's estate before the above-mentioned obligations chargeable to the estate
are first paid. Nowhere from said section may it be inferred that the court cannot make a declaration of heirs prior to the satisfaction of these obligations. (Ngo The Hua vs. Chun g Ki at Hu a, G.R. No. L-17091, Septem ber 30, 1963) Determination of charges against the estate necessary before the distribution of legal share:
Before any conclusion about the legal share due to a compulsory heir may be reached, it is necessary that the net estate of the decedent must be ascertained, by deducting all payable obligations and charges from the value of the property owned by the deceased at the time of his death; then, all donations subject to collation would be added to it, form there, the legitime of the compulsory heir or heirs can be established; and it is only then can it be ascertained whether or not a donation had prejudiced the legitimes. (Natcher vs. CA, G.R. No. 133000, Octo ber 2, 2001) Claim of the creditor of the heirs of the deceased may be collected from the share of the heir:
The creditor of the heirs of a deceased person is entitled to collect his claim out of the property which pertains by inheritance to said heirs, only after the debts of the testate or intestate succession have been paid and when the net assets that are divisible among the heirs are known, because the debts of the deceased must first be paid before his heirs can inherit. (Lito nju a vs. Mon tilla, G.R. No. L-4170, Jan uar y 31, 1952) 4.8.2. PROJECT OF PARTITION
Power of the probate court to determine share: Project of partition:
The probate court, in the exercise of its jurisdiction to distribute the estate, has the power to determine the proportion or parts to which each distributee is entitled . A project of partition is merely a proposal for the distribution of the heredity estate which the court may accept or reject. It is the court that makes that distribution of the estate and determines the persons entitled thereto. (Vda. De Kilayk o v s. Tengc o, G.R. No. 45425 March 27, 1992)
Approval of the project of partition does not terminate administration proceedings:
In the case of Montemayor vs. Gutierrez (114 Phil. 95), an estate may be partitioned even before the termination of the administration proceedings. Hence, the approval of the project of partition did not necessarily terminate the administration proceedings. (Luzon Sur ety v s. Queb rar, G.R. No. L-40517 Jan uary 31, 1984)
Requisites in order to consider settlement proceeding closed:
In order that a proceeding for the settlement of the estate of a deceased may be
deemed ready for final closure: (1) there should have been issued already an order of distribution or assignment of
the estate of the decedent among or to those entitled thereto by will or by law, but (2) such order shall not be issued until after it is shown that the "debts, funeral expenses, expenses of administration, allowances, taxes, etc. chargeable to the estate" have been paid, which is but logical and proper. (3) Besides, such an order is usually issued upon proper and specific application for the purpose of the interested party or parties, and not of the court. (Palicte vs . Ramolete, G.R. No. L-55076 Septem ber 21, 1987)
When will the heirs be entitled to residue of the estate?
It is only after, and not before, the payment of all debts, funeral charges, expenses of administration, allowance to the widow, and inheritance tax shall have been effected that the court should make a declaration of heirs or of such persons as are entitled by law to the residue. (Moran, Comments on the Rules of Court, 2nd ed., Vol. II, p. 397, citing Capistrano vs. Nadurata, 49 Phil., 726; Lopez vs. Lopez, 37 Off. Gaz., 3091.) (Jimog a- On vs. Belmo nte, 84 Phil . 545, G.R. No. L-1605, Septem ber 13, 1949)
Order of distribution and delivery of the residue of the estate closes the settlement proceeding:
What brings an intestate (or testate) proceeding to a close is the order of distribution directing delivery of the residue to the persons entitled thereto after paying the indebtedness, if any, left by the deceased. (PCIB vs. Esc olin, G.R. Nos. L -27860 An d L 27896 March 29, 1974)
Grounds to set aside final liquidation:
The only instance where a party interested in a probate proceeding may have a final liquidation set aside is when he is left out by reason of circumstances beyond his control or through mistake or inadvertence not imputable to negligence. Even then, the better practice to secure relief is reopening of the same case by proper motion within the reglementary period, instead of an independent action. (Vda. De Alber to v s. Ca, G.R. No. L-29759 May 18, 1989)
After approval of partition and distribution and receipt of share of the distributee forecloses attack o its validity:
Where a partition had not only been approved and thus become a judgment of the court, but distribution of the estate in pursuance of such partition had fully been carried out, and the heirs had received the property assigned to them, they are precluded from subsequently attacking its validity or any part of it. (Ralla vs. Jud ge Untalan, G.R. Nos. L-
63253-54, Ap ril 27, 1989)
Power to distribute exclusive with the power court: Doctrine of non-interference:
We hold that the separate action was improperly filed for it is the probate court that has exclusive jurisdiction to make a just and legal distribution of the estate. In the interest of orderly procedure and to avoid confusing and conflicting dispositions of a decedent's estate, a court should not interfere with probate proceedings pending in a co-equal court. (Solivio vs . CA, G.R. No. 83484, Febr uary 12, 1990) 4.8.3. REMEDY OF AN HEIR ENTITLED TO RESIDUE BUT NOT GIVEN HIS SHARE:
Non-compliance of the order of distribution of estate does not terminate probate proceedings:
As long as the order of the distribution of the estate has not been complied with, the probate proceedings cannot be deemed closed and terminated because a judicial partition is not final and conclusive and does not prevent the heirs from bringing an action to obtain his share, provided the prescriptive period therefore has not elapsed (Mari v s. Bon ilia, 83 Phil. 137 Marc h 19, 1949, G.R. No. L -852).
Remedies of heir who has not receive his share:
As a general rule, the better practice, however, for the heir who has not received his share, is to demand his share through a proper motion in the same probate or administration proceedings, or for reopening of the probate or administrative proceedings if it had already been closed , and not through an independent action. (Solivio v s. CA, G.R. No . 83484, Febru ary 12, 1990)
ANALYSIS of Solivio and Guilas case: In Solivio case, the proceeding were still pending, thus, the movant had lost her right to have herself declared as a co-heir in said proceedings. Because she failed to pursue the motion in the same action but instead erroneously chose to file a separate action. Unlike the circumstances present in the Guilas case where the estate proceedings had already been closed and terminated for three years, thus, the separate action filed by the movant for the annulment of the project partition was allowed to continue. 4.8.4. INSTANCES WHEN PROBATE COURT MAY ISSUE WRIT OF EXECUTION
Probate court generally cannot issue a writ of execution. It is not supposed to issue a writ of execution because its orders usually refer to the adjudication of claims against the estate which the executor or administrator may satisfy without the necessity of resorting to
a writ of execution. The probate court, as such, does not render any judgment enforceable by execution. (Pastor , Jr. vs . CA, G.R. No. L-56340, Ju ne 24, 1983) The circumstances that the Rules of Court expressly specifies that the probate court may issue execution (1) to satisfy (debts of the estate out of) the contributive shares of devisees, legatees and heirs in possession of the decedent's assets (Sec. 6. Rule 88 ), (2) to enforce payment of the expenses of partition ( Sec. 3, Rule 90), and (3)
to satisfy the costs when a person is cited for examination in probate proceedings (Sec. 13, Rule
142 )
Under the rule of inclusion unius est exclusion alterius, the above cited instances are the only circumstances when probate court can issue a writ of execution. Clearly, the provision authorizes execution to enforce payment of debts of estate. A legacy is not a debt of the estate.(Pastor , Jr. vs . CA, G.R. No. L -56340, Ju ne 24, 1983) 4.8.5. Effects of judgment of local courts:
Section 47 of Rule 39 provides: The effect of a judgment or final order rendered by a court of the Philippines, having jurisdiction to pronounce the judgment or final order, may be as follows: (a) In case of a judgment or final order against a specific thing, or in respect to the probate of a will, or the administration of the estate of a deceased person, or in respect to the personal, political, or legal condition or status of a particular person or his relationship to another, the judgment or final order is conclusive upon the title to the thing, the will or administration, or the condition, status or relationship of the person; however, the probate of a will or granting of letters of administration shall only be prima facie evidence of the death of the testator or intestate;
4.9. TRUSTEES
What is a trust?
A trust is a confidence reposed in one person, called the trustee, for the benefit of another, called the cestui que trust, with respect to property held by the former to the latter. The person in whom the confidence is reposed as regards property for the benefit of another is known as trustee. (Special Proceedings by Gemilito Festin, Second Edition, 2011, Page 134)
What is an express trust? Express trusts are those which are created by the direct and positive acts of the
parties, by some writing or deed, or will, or by words evincing an intention to create a trust. Implied trusts are those which, without being express, are deducible from the nature of the transaction as matters of intent, or which are superinduced on the transaction by operation of law as matters of equity, independently of the particular intention of the parties. (O ’laco vs . Co Cho Chit , G.R. No. 58010. Marc h 31, 1993.) What is a resulting trust?
A resulting trust is one that arises by implication of law and presumed always to have been contemplated by the parties, the intention as to which can be found in the nature of their transaction although not expressed in a deed or instrument of conveyance. Upon the other hand, a constructive trust is a trust not created by any word or phrase, either expressly or impliedly, evincing a direct intention to create a trust, but one that arises in order to satisfy the demands of justice. (Yap vs . CA, G.R. No. 133047. Au gu st 17, 1999) Implied trust may be established by parol evidence?
Implied Trust may be established by parol evidence, Express Trust cannot. Even then, in order to establish an implied trust in real property by parol evidence, the proof should be as fully convincing as if the acts giving rise to the trust obligation are proven by an authentic document. An implied trust, in fine, cannot be established upon vague and inconclusive proof. (Yap vs . CA, G.R. No. 133047. Au gu st 17, 1999) Requisites to bar action by beneficiary against trustee which acquired title to the property by acquisitive prescription:
It is true that in express trusts and resulting trusts, a trustee cannot acquire by prescription a property entrusted to him unless he repudiates the trust. Acquisitive prescription may bar the action of the beneficiary against the trustee in an express trust for the recovery of the property held in trust where (a) the trustee has performed unequivocal acts of repudiation amounting to an ouster of the cestui que trust ; (b) such positive acts of repudiation have been made known to the cestui que trust , and (c) the evidence thereon is clear and conclusive. (Torbela vs. Ro sario, G.R. No. 140528 G.R. No. 140553, Decemb er 7,
2011 )
Elements for the existence of trust:
As a rule, however, the burden of proving the existence of a trust is on the party asserting its existence, and such proof must be clear and satisfactorily show the existence of the trust and its elements. The presenc e of the following elements must be
proved: (1) a trustor or settlor who executes the instrument creating the trust; (2) a trustee, who is the person expressly designated to carry out the trust; (3) the trust res, consisting of duly identified and definite real properties; and (4) the cestui que trust, or beneficiaries whose identity must be clear. (CANEZO VS R OJA S, G.R. NO. 148788, NOVEMB ER 23, 2007) 4.9.1. DISTINGUISHED FROM EXECUTOR/ADMINISTRATOR
Trustee
Executor/Administrator
Accounts are NOT under oath and except for initial and final submission of accounts; they
Accounts must be
shall be filed only at such times as may be
UNDER OATH and
filed
ANNUALLY .
Court which has jurisdiction is RTC if appointed to carry into effect provisions of a Court that has jurisdiction may be MTC or RTC . will; if trustee dies, resigns or removed in a
May sell, encumber or mortgage property if it is necessary for the purpose of paying debts, expenses of administration or legacies, or for May sell or encumber property of estate held the preservation of property or if sale will be in trust if necessary or expedient upon ORDER beneficial to heirs, legatees or devisees. (Upon of the court.
Order of sale has NO TIME LIMIT .
Order of sale has
NO TIME LIMIT .
Appointed to CARRY INTO EFFECT the Appointed by the court to SETTLE estate of
provisions of a will or written instrument
NOT EXEMPTED from filing bond even if such May be EXEMPTED from filing bond if
exemption is provided in the will (bond is only provided in the will or if beneficiaries
Services of executor or administrator are Trusteeship is terminated upon TURNING terminated UPON PAYMENT OF DEBTS of the OVER THE PROPERTY to beneficiary after expiration of trust (period may be provided for
estate and distribution of property to heirs. MUST PAY the debts of the estate.
in the will or trust contract).
NO OBLIGATION to pay debts of beneficiary
or trustor. (FEU Bar Reviewer 2014, Remedial Law, page 145 ) 4.9.2. CONDITIONS OF THE BOND
The following conditions shall be deemed a part of the bond whether written therein or not
1) INVENTORY. The trustee shall submit to the court an inventory of the
personal and real estate belonging to him as trustee who shall have come to his possession or knowledge. 2) MANAGEMENT AND DISPOSITION. The trustee shall manage and dispose of such estate and faithfully discharge his trust in relation thereto. 3) ACCOUNT. The trustee shall render under oath at least once a year until his trust is fulfilled an account of the property in his hands and of the management and disposition thereof. 4) SETTLEMENT OF ACCOUNTS. The trustee shall settle his accounts and deliver the remaining estate in his hands to those entitled thereto (S6 R98; Manuel R. Rigu era – Special
Proc eeding Notes). 4.9.3. REQUISITES FOR THE REMOVAL AND RESIGNATION OF A TRUSTEE: 1) If removal appears essential in the interests of the petitioners:
a) Petition to the proper RTC of the parties beneficially interested; b) Due notice to the trustee; and c) Hearing 2) Removal of a trustee who is insane or otherwise incapable of
discharging his trust or evidently unsuitable therefore: a) At the initiative of the court; b) After due notice to all persons interested 3) Resignation:
a) whether appointed by the court or under a written instrument; b) if it appears to the court proper to allow such resignation (FEU Remed ial Law Review er 2014, pag e 146) 4.9.4. GROUNDS FOR REMOVAL AND RESIGNATION OF A TRUSTEE
(1) A d m i n i s t r a t io n r e v o k e d i f w i l l d i s c o v e r e d . Pr o c e e d i n g s t h e r e u p o n . If after
letters of administration have been granted on the estate of a decedent as if he had died intestate, his will is proved and allowed by the court, the letters of administration shall be revoked and all powers thereunder cease, and the administrator shall forthwith surrender the letters to the court, and render his account within such time as the court directs. Proceedings for the issuance of letters testamentary or of administration under the will shall be as hereinbefore provided (Sec. 1, Rule 82) . (2) Court may remov e or accept resignation of executor o r administrator.
If an executor or administrator neglects to render his account and settle the estate according to law, or to perform an order or judgment of the court, or a duty expressly provided by these rules, or absconds, or becomes insane, or otherwise incapable or unsuitable to discharge the trust, the court may remove him, or, in its discretion, may permit him to resign. When an executor or administrator dies, resigns, or is removed the remaining executor or administrator may administer the trust alone, unless the court grants letters to someone to act with him. If there is no remaining executor or administrator, administration may be granted to any suitable person Proceedings up on death, resignation, or removal.
(Sec. 2, Rule 82 ). 4.9.5. EXTENT OF AUTHORITY OF TRUSTEE Rights, powers and duties of a trustee:
A trustee appointed by the RTC shall have the same rights, powers, and duties, and in whom the estate shall vest, as if he had been appointed by the testator. No person succeeding to a trust as executor or administrator of a former trustee shall be ) required to accept such trust. (Section 2, Rule 98 In case of vacancy where the RTC has appointed a new trustee, such new trustee shall have and exercise the same powers, rights, and duties as if he had been originally appointed, and the trust estate shall vest in him in like manner as it had vested or would have vested, in the trustee in whose place he is substituted; and the court may order such conveyance to be made by the former trustee or his representatives, or by the other remaining trustees, as may be necessary or proper to vest the trust estate in the new trustee, either alone or Jointly with the others. (Sec. 3, Ru le 98) 4.10. ESCHEAT What is escheat?
Escheat proceedings refer to the judicial process in which the state, by virtue of its sovereignty, steps in and claims abandoned, left vacant, or unclaimed property, without there being an interested person having a legal claim thereto. (Rizal Com mercial Bankin g C o r p o r a t i o n v s . H i - T r i D ev e l o p m e n t C o r p o r a t i o n a n d L u z R . B a k u n a w a ., G .R . No . 192413, Jun e 13, 2012) Escheat is a proceeding, unlike that of succession or assignment, whereby the state,
by virtue of its sovereignty, steps in and claims the real or personal property of a person who dies intestate leaving no heir. Since escheat is one of the incidents of sovereignty, the state may, and usually does, prescribe the conditions and limits the time within which a claim to such property may be made. (RP vs. CA & Solan o, G.R. No. 143483, Januar y 31, 2002) Nature of Escheat proceeding
Accordingly, the CA committed reversible error when it ruled that the issuance of individual notices upon respondents was a jurisdictional requirement, and that failure to
effect personal service on them rendered the Decision and the Order of the RTC void for want of jurisdiction. Escheat proceedings are actions in rem , whereby an action is brought against the thing itself instead of the person . Thus, an action may be instituted and carried to judgment without personal service upon the depositors or other claimants
]
. Jurisdiction is secured by the power of the court over the res. Consequently, a judgment of escheat is conclusive upon persons notified by advertisement, as publication is considered a general and constructive notice to all persons interested. (Rizal Com mercial Bankin g C o r p o r a t i o n v s . H i - T ri D e v e lo p m e n t C o r p o r a t i o n a n d L u z R . B a k u n a w a ., G .R . No . 192413, Jun e 13, 2012)
OBJECTIVE OF ESCHEAT PROCEEDINGS
It is not the intent of the law to force depositors into unnecessary litigation and defense of their rights, as the state is only interested in escheating balances that have been abandoned and left without an owner. x x x We reiterate our pronouncement that the objective of escheat proceedings is state forfeiture of unclaimed balances. x x x Rizal Commercial B anking Cor poration vs. Hi-Tri Developm ent Cor poration and L uz R. Baku nawa., G.R. No. 192413, Jun e 13, 2012)
4.10.1. WHEN TO FILE?
When a person dies intestate, seized of real or personal property in the Philippines, leaving no heir or person by law entitled to the same, the Solicitor General or his representative in behalf of the Republic of the Philippines, may file a petition in the Court of First Instance of the province where the deceased last resided or in which he had estate, if he resided out of the Philippines, setting forth the facts, and praying that the estate of the deceased be declared escheated. (Section 1, Rule 91) Dormant accounts subject of escheat
In the case of dormant accounts, the state inquires into the status, custody, and ownership of the unclaimed balance to determine whether the inactivity was brought about by the fact of death or absence of or abandonment by the depositor. If after the proceedings the property remains without a lawful owner interested to claim it, the property shall be reverted to the state ―to forestall an open invitation to self-service by the first comers.‖ However, if interested parties have come forward and lain claim to the property, the courts shall determine whether the credit or deposit should pass to the claimants or be forfeited in favor of the state. We emphasize that escheat is not a proceeding to penalize depositors for failing to deposit to or withdraw from their accounts. It is a proceeding whereby the state compels the surrender to it of unclaimed deposit balances when there is substantial ground for a belief that they have been abandoned,
forgotten, or without an owner. ( Ri z al C o m m e r c i a l B a n k i n g C o r p o r a t i o n v s . H i - Tr i Developm ent Cor po ration and L uz R. Bakun awa., G.R. No. 192413, Jun e 13, 2012)
Parties in a petition for Escheat: Rule 91 of the Revised rules of Court , which provides that ONLY the Republic of the
Philippines, through the Solicitor General, may commence escheat proceedings, did not take effect until January 1, 1964. They shall govern all cases brought after they take effect, and also all further proceedings in cases pending, except to the extent that in the opinion of the court, their application would not be feasible or would work injustice , in which event the former procedure shall apply. (Tan v s. City of Davao, G.R. No. L -44347 Septemb er 29, 1988)
"Interested party" in an escheat proceeding -
In a special proceeding for escheat under sections 750 and 751 the petitioner is not the sole and exclusive interested party. Any person alleging to have a direct right or interest in the property sought to be escheated is likewise an interested party and may appear and oppose the petition for escheat. (RP vs. CA & Solano, G.R. No. 143483, January 31, 2002)
Real party in interest:
A "real party in interest" has been defined as the party who would be benefited or injured by the judgment of the suit or the party entitled to avail of the suit. There can be no doubt that private respondent bank falls under this definition for the escheat of the dormant deposits in favor of the government would necessarily deprive said bank of the use of such deposits. (RP vs. CFI of Mani la, G.R. No. L-30381 Aug us t 30, 1988) The jurisdiction acquired cannot be converted into one for the distribution of the properties of the said decedents. For such proceedings (for the distribution of the estate of the decedents) to be instituted, the proper parties must be presented and the proceedings should comply with the requirements of the Rule. (Mun. of Magallon, Negros Occ . vs. Bezo re, G.R. No. L -14157, Octob er 26, 1960) 4.10.2. REQUISITES FOR FILING OF PETITION:
1) That a person died intestate; 2) That he left no heirs or persons by law entitled to the same; and 3) The deceased left properties. ( C i t y o f M a n i l a v s . A r c h b i s h o p o f M a n i l a , G R 10033, Au gus t 30 , 1917 )
Requirement of publication and notice
Hence, insofar as banks are concerned, service of processes is made by delivery of a copy of the complaint and summons upon the president, cashier, or managing officer of the defendant
[8]
bank. On the other hand, as to depositors or other claimants of the unclaimed balances, service is made by publication of a copy of the summons in a newspaper of general circulation in
.
the locality where the institution is situated A notice about the forthcoming escheat proceedings must also be issued and published, directing and requiring all persons who may claim any interest in the unclaimed balances to appear before the court and show cause why the dormant accounts should not be deposited with the Treasurer. (Rizal Comm ercial Bankin g Corp oration vs. Hi-Tri D e v el o p m e n t C o r p o r a t i o n a n d
Lu z R. Baku naw a., G.R. No . 192413, Ju ne 13, 2012)
Effects of judgment in escheat proceedings:
A judgment in escheat proceedings when rendered by a court of competent jurisdiction is conclusive against all persons with actual or constructive notice, but not against those who are not parties or privies thereto. Absolute lack on the part of petitioners of any dishonest intent to deprive the appellee of any right, or in any way injure him, constitutes due process of law, proper notice having been observed. (RP vs. CA & Solano, G.R. No. 143483, Jan uar y 31, 2002) 4.10.3. REMEDY OF RESPONDENT AGAINST PETITIONER; PERIOD FOR FILING A CLAIM:
The 5-year period is not a device capriciously conjured by the state to defraud any claimant; on the contrary, it is decidedly prescribed to encourage would-be claimants to be punctilious in asserting their claims, otherwise they may lose them forever in a final judgment. (RP vs. CA & So lano , G.R. No. 143483, Jan uary 31, 2002) Motion to dismiss available when the petition for escheat is groundless:
When a petition for escheat is clearly groundless for the court to proceed to the inquisition provided by law, an interested party should not be disallowed from filing a motion to dismiss the petition which is untenable from all standpoints. And when the motion to dismiss is entertained upon this ground, the petition may be dismissed unconditionally and the petitioner is not entitled to be afforded an opportunity to amend his petition. (Go Poco Groc ery vs . Pacific Bis cui t Co., G.R. Nos. L-43697 and L-442200, March
31, 1938, 65 Ph il. 443).
4.11. GUARDIANSHIP: Rule governing guardianship of minors and incompetent:
Rules 92-97 of the Revised Rules of Court originally governs the Guardianship of a minor and incompetent both as to their person and property. However, by virtue of Administrative matter no. 03-02-05 SC (AM n o. 03-02-05 SC ) , the Supreme Court retained in the meantime Rule 92-97 to be applied only to Guardianship of an Incompetent other than a minor. Effectively, guardianship would be treated in two parts, one pursuant to Administrative matter no. 03-02-05 SC which deals with Guardianship of Minors and the other refers to the Guardianship of Incompetents under Rules 92-97. Also, in Guardianship of Minors, it is the Family Court of the place where the minor resides or if a non-resident, with the Family Court of the place where the minor ’s property or part thereof is situated, which has jurisdiction over the guardianship proceeding. (as can b e gleaned from the prov isions of RA 8369) On the other hand, with regard to Guardianship of Incompetents, it is the RTC of the place where the incompetent resides or if a non-resident, with the RTC of the place where the incompetent ’s property or part thereof is situated, which has jurisdiction over the guardianship proceeding for such incompetent. ( Special P r o c e e d i n g s : An no tation s by Herrera, 2007 Edition , page 232 )
Purpose of guardianship?
A guardianship is designed to further the ward ’s well-being, not that of the guardian. It is intended to preserve the ward ’s property, as well as to render any assistance that the ward may personally require. It has been stated that while custody involves immediate care and control, guardianship indicates not only those responsibilities, but those of one in loco parentis as well. (Orop esa vs. Oro pes a, G.R. No. 184528, Ap ril 25, 2012) Basis of guardianship of minor:
Where minors are involved, the State acts as parens patriae which is inherent in the supreme power of every State, whether that power is lodged in a royal person or in the legislature, and has no affinity to those arbitrary powers which are sometimes exerted by irresponsible monarchs to the great detriment of the people and the destruction of their liberties. On the contrary, it is a most beneficent function, and often necessary to be exercised in the interest of humanity, and for the prevention of injury to those who cannot protect themselves." (De Leon v s. Loren zo, Gr L-23096 April 27, 1972) NATURAL GUARDIAN VS. JUDICIAL GUARDIAN : POWER T O DISPOSE OR ENCUMBER THE PROPERTY OF WARD
Thus, a father or mother, as the natural guardian of the minor under parental authority, does not have the power to dispose or encumber the property of the latter. Such power is granted by law only to a judicial guardian of the ward’s property and even
then only with courts ’ prior approval secured in accordance with the proceedings set forth (Napoleon D. Neri, Alicia D. Neri-Mondejar, Vismind a D. Neriby the Rules of Court. (Napoleon Chambers, Rosa D. Neri-Millan, Douglas D. Neri, Eutropia D. Illut-Cockinos and Victoria D. Illut- Piala vs. Heirs of Hadji Yusop Uy and Julpha Ibrahim Uy., G.R. No. 194366, October 10, 2012)
4.11.1. GENERAL POWERS AND DUTIES OF GUARDIANS ( Rule 96 )
Summary of the powers and duties of guardians: 1) Have the care and custody of his ward and the management of his estate or the management of the estate only, as the case may be .(Sec.1) 2) Must pay debts of ward. (Sec. 2) 3) To settle accounts, collect debts and appear in action for ward. (Sec. 3) 4) Estate to be managed frugally, and proceeds applied to maintenance of ward. (Sec.4)
May be authorized by court to join in partition proceedings after hearing. (Sec. 5) 6) The guardian may file a complaint against anyone whom is suspected of having embezzled, concealed or conveyed c onveyed away the any property of the ward. (Sec. 6) 5)
7) Must render to the court an inventory of the estate of his ward within three
months after his appointment and annually after such appointment; such inventories and accounts shall be sworn to by the guardian. (Sec. 7) 8) Upon the expiration of a year from the time of his appointment, and as often thereafter as may be required, a guardian must present his account to the court for settlement and allowance. (Sec. 8) Power of the parent/legal guardian over the property of the minor requires judicial power:
Under the law, a parent, acting merely as the legal (as distinguished from judicial) administrator of the property of his/her minor children, does not have the power to dispose of, or alienate, the property of said children without judicial approval. The powers and duties of the widow as legal administrator of her he r minor children's property as provided pro vided in Rule 84 by the Rules of Court are only powers of possession and management. (Lin dain vs . Ila, Ila, G.R. G.R. No. 95305 95305 Aug us t 20, 1992)
Power of the parents/guardian to repudiate inheritance requires judicial approval:
Parents and guardians may not therefore repudiate the inheritance of their wards without judicial approval. This is because repudiation amounts to an alienation of property which must pass the court's scrutiny in order to protect the interest of the ward. Not having been judicially authorized, authorized, the Release and Waiver Waiver of Claim in the instant case is void and wil l not bar private respondents from asserting their rights as heirs of the deceased. (Guy vs. CA , G.R. No. 163707, 163707, Septem ber 15, 2006) 2006)
Power of the guardianship special and limited:
Generally, the guardianship court exercising special and limited jurisdiction cannot actually order the delivery of the property of the ward found to be embezzled, concealed or conveyed. In a categorical language of this Court, only in extreme cases, where property clearly belongs to the ward or where his title thereto has been already judicially decided, may the court direct its delivery to the guardian. (Parco (Parco & Bautis ta vs. CA, G.R. No. L-33152 Janu ary 30, 1982)
Conflict of interest a ground for the removal of the guardian:
Conflict of interest has been held sufficient ground for removal, the court may exercise discretion to render a guardian unsuitable for the trust. To the extent that a court uses its discretion in appraising whether a person is unsuitable or incapable of discharging his trust , it can be said that removal is discretionary but such discretion discretion must be exercised within the law, and when the latter has laid down the grounds for removal of a guardian, discretion is limited Matter of Guardianship of to inquiring as to the existence of any of those grounds. (In The Matter of Carmen Vda. De Beng son vs. PNB , G.R. No. L-1706 L-17066, 6, December 28, 1961) 1961)
Relationship of guardian and ward is dissolved by death
It is a well-established rule that the relationship of guardian and ward is necessarily terminated by the death of either the guardian or the ward. The supervening event of death rendered it pointless to delve into the propriety of Biason ’s appointment since the juridical tie between him and Maura has already been dissolved. (Eduardo T. Abad vs. Leon ardo Biason and Gabriel Magno ., G.R. G.R. No. 19199 191993, 3, Decemb Decemb er 5, 2012) 2012)
4.11.2. CONDITIONS OF THE BOND OF THE GUARDIAN
Before an appointed guardian enters upon the execution of his trust, he shall give a BOND. Conditions: 1) To make and return to the court, within three (3) months, a true and complete
INVENTORY of all the estate of his ward which shall come to his possession or knowledge or to the possession or knowledge of any other person for him; 2) To FAITHFULLY execute the duties of his trust, to manage and dispose of the estate according to these rules for the best interests of the ward, and to provide for the proper care, custody, and education of the ward; 3) To Render a true and just ACCOUNT of all the estate of the ward in his hands, and of all proceeds or interest derived therefrom, and of the management and disposition of the same, at the time designated by these rules and such other times as the court directs; and
at the expiration of his trust to Settle his accounts with the court and Deliver and pay over all the estate, effects, and moneys remaining in his hands, or due from him on such settlement, to the person lawfully entitled thereto; 4) To PERFORM all orders of the court by him to be performed. ( Section 1, rule 94 )
Purpose of the Bond :
The purpose of the bond is for the protection of the property of the minor or incompetent to the end that he may be assured of an honest administration of his funds during his minority. The bond served as security to those interested in the property settlement of the estate, and the parties interested acquire a vested interest in the bond which cannot be divested without their consent, except in a manner prescribed by law (Special Proc eedings , Herrera, Herrera, 2005 2005 Edition P. 281 281 ). ). Necessity of the Bond:
When required by statutes to give a bond, no person can qualify and acts as guardian without complying with this condition precedent. The court should not grant letters of 2005 Editio n P. 282) guardianship without requiring a bond. (Special Proceedin gs, Herrera, 2005 4.11.3. RULE ON GUARDIANSHIP OVER MINOR
SALIENT PROVISIONS UNDER THE RULE ON GUARDIANSHIP OF MINORS (AM NO. 03-02-05 S C ): ): APPLICABILITY OF THE T HE RULE: I. APPLICABILITY Father and mother as legal guardian of minor; court appointment not required:
The father and mother shall jointly exercise legal guardianship over the person and property of their unemancipated common child without the necessity of a court appointment. The Rule shall be suppletory to the provisions of the Family Code on guardianship (Sec. 1, AM NO. 03-02-05 SC). Who may file petition for guardianship?
On grounds authorized by law, any relative or other person on behalf of a minor, or the minor himself if 14 years of age or over, may petition the Family Court for the appointment of a general guardian over the person or property, or both, of such minor. The petition may also be filed by the Secretary of DSWD and of the DOH in the case of an insane minor who needs to be hospitalized (Sec. 1, AM NO. 03-02-05 SC). II. GROUNDS FOR PETITION (Section 4, AM NO. 03-02-05 SC) SC)
The grounds for the appointment of a guardian over the person or property or both, of a minor are the following: 1) Death, continued absence or incapacity of his parents; 2) Suspension, deprivation or termination of parental authority; 3) Remarriage of his surviving parent, if the latter is found unsuitable to
or
exercise parental authority;
4) When the best interest of the minor so require. III. Who may be appointed guardian of the person or property or both of a minor
(Section 6, AM N O. 03-02-05 SC)
In default of parents or a court-appointed guardian, the court may appoint a guardian of the person or property or both of a minor, observing as far as practicable, in the following order of preference: 1) The surviving grandparent in case several grandparent survive, the
court shall select any of them taking into account all relevant considerations; 2) The oldest brother or sister of the minor over twenty-one years of age, unless unfit or disqualified; 3) The actual custodian of the minor over twenty-one years of age, unless unfit or disqualified; or 4) Any other person, who in the sound discretion of the court, would serve the best interest of the minor. IV. QUALIFICATIONS OF GUARDIANS (Sectio n 5, AM N O. 03-02-05 SC):
a) Moral character; b) Physical, mental and psychological condition; c) Financial status; d) Relationship of trust with the minor; e) Availability to exercise the powers and duties of a guardian for the full period
of the guardianship; f) Lack of conflict of interest with the minor; and g) Ability to manage the property of the minor.
V. CASE STUDY REPORT (Section 9, AM NO. 03-02-05 SC)
The court shall order a social worker to conduct a case study of the minor and all the prospective guardians and submit his report and recommendation to the court for its guidance before the scheduled hearing. The social worker may intervene on behalf of the minor if he finds that the petition for guardianship should be denied.
VI. When and How a Guardian of the Property for Nonresident Minor is Appointed; Notice
(Sectio n 12, AM NO. 03-02-05 SC)
When minor resides outside the Philippines but has property in the Philippines: 1) Any relative or friend of such minor or anyone interested in his property, in
expectancy or otherwise, may petition to the Family Court for the appointment of a guardian over his property. 2) Notice of hearing shall be given to the minor by publication or any other
means as the court may deem proper. The court may dispense with the presence of the non-resident minor. VII. Bond
of Parents as Guardians of Property of Minor (Sec . 16, AM NO . 03-02-05 SC)
If the market value of the property or the annual income of the child exceeds P50,000.00, the parent concern shall furnish a bond in such amount as the court may determine, but in no case less than 10% of the value of such property or annual income, to guarantee the performance of the obligations prescribed for general guardians. NOTE: A verified petition for approval of the bond shall be filed in the Family Court of
the place where the child resides, or, if the child resides in a foreign country, in the Family Court of the place where the property or any part thereof is situated. The petition shall be docketed as a summary special proceeding, in which all incidents and issues regarding the performance of the obligations of general guardian shall be heard and resolved. VIII. Grounds for Termination of Guardianship
1. If upon petition by the person declared incompetent, or his guardian, relative, or
friend, and after trial, it is judicially determined that the person is no longer incompetent, his competency shall be adjudged and the guardianship shall cease. (Sectio n1, Rule 97). 2. The guardianship may also be terminated when it appears that the guardianship is no longer necessary. (Section 3, Rule 97) IX. Grounds for removal or resignation of guardian ( S e c t i o n 2 4 )
When a guardian becomes insane or otherwise incapable of discharging his trust or is found thereafter to be unsuitable, or has wasted or mismanaged the property of the ward, or has failed to render an account or make a return for thirty days after it is due, the court may, upon reasonable notice to the guardian, remove him as such and require him to surrender the property of the ward to the person found to be lawfully entitled thereto.
The court may allow the guardian to resign for justifiable causes. Upon the removal or resignation of the guardian, the court shall appoint a new one.
No motion for removal or resignation shall be granted unless the guardian has submitted the proper accounting of the property of the ward and the court has approved the same. Upon termination of the trust, it is the duty of the guardian to render a true and Just account of all the property of the ward in his hands, and of all proceeds or interest derived therefrom, and of the management and disposition of the same, at the time designated by this rule and such other times as the court directs; and at the expiration of his trust, to settle his accounts with the court and deliver and pay over all the property, effects, and monies remaining in his hands, or due from him on such settlement, to the person lawfully entitled thereto, as provided for in Section 14, par. C of AM No. 03-02-05 SC. 4.12. ADOPTION: What is adoption?
Adoption is defined as the process of making a child, whether related or not to
the adopter, possess in general, the rights accorded to a legitimate child. It is a juridical act, a proceeding in rem which creates between two persons a relationship similar to that which results from legitimate paternity and filiation. (IN RE: Steph anie Garc ia, GR 148311, March 31, 2005)
What is the purpose of adoption?
Formerly, Adoption used to be for the benefit of the adoptor and was intended to afford to persons who have no child of their own the consolation of having one, by creating through legal fiction, the relation of paternity and filiation where none exists by blood relationship. The present tendency, however, is geared more towards the promotion of the welfare of the child and the enhancement of his opportunities for a useful and happy life, and every intendment is sustained to promote that objective. ( D a o a n g v s . C A , G.R. No. L- 34568 Marc h 28, 1988 ) 4.12.1. Distinguish domestic adoption from inter-country adoption:
DOMESTIC ADOPTION RA 8552
Proper in DOMESTIC adoption. QUALIFICATIONS:
INTER-COUNTRY ADOPTION RA 8043 Proper in INTER-COUNTRY adoption.
QUALIFICATIONS: 1.)
FILIPINO CITIZEN:
A. legal age, in possession of full civil An alien or a Filipino citizen permanently capacity and legal rights, residing abroad may file an application for inter-country adoption of a Filipino child if B. of good moral character, has not been he/she: convicted of any crime involving moral (a) is at least twenty-seven (27) years of age and at least sixteen (16) years older than turpitude, emotionally and the child to be adopted, at the time of c. psychologically capable of caring for application unless the adopter is the parent by children, nature of the child to be adopted or the spouse of such parent: D. at least sixteen (16) years older than the b) if married, his/her spouse must jointly file for adoptee, and who is in a position to support the adoption; and care for his/her children in keeping with the means of the family. (Waived when c) has the capacity to act and assume all rights adopter is a biological parent of the adoptee, and responsibilities of parental authority under his national laws, and has undergone or is the spouse of the adoptee ’s parent)
2.)
the appropriate counseling from an accredited counselor in his/her country;
ALIEN:
Any alien possessing the same qualifications
as above stated for Filipino nationals:
d)
has not been convicted of a crime involving
Provided , That his/her country has diplomatic moral turpitude; relations with the Republic of the Philippines, that he/she has been living in the Philippines e) is eligible to adopt under his/her national for at least three (3) continuous years prior to law; the filing of the application for adoption and maintains such residence until the adoption ) is in a position to provide the proper care and
decree is entered, that he/she has been certified by his/her diplomatic or consular office or any
support and to give the necessary moral values and example to all his children, including the child to be adopted;
appropriate government agency that he/she
has the legal capacity to adopt in his/her country, and that his/her government allows the adoptee to enter his/her country as his/her adopted son/daughter:
g) agrees
to uphold the basic rights of the child as embodied under Philippine laws, the U.N. Convention on the Rights of the Child, and to abide by the rules and regulations issued to
implement the provisions of this Act;
Exception to the Requirements on residency: : h) comes
from a country with whom the Philippines has diplomatic relations and a former Filipino citizen who seeks to adopt a whose government maintains a similarly relative within the fourth (4th) degree of authorized and accredited agency and that consanguinity or affinity; or adoption is allowed under his/her national i) one who seeks to adopt the legitimate laws; and possesses all the qualifications and son/daughter of his/her Filipino spouse; or none of the disqualifications provided herein ii) one who is married to a Filipino citizen and and in other applicable Philippine laws.
seeks to adopt jointly with his/her spouse a relative within the fourth (4th) degree of consanguinity or affinity of the Filipino spouse; or 3.) GUARDIAN: The guardian with respect to the ward after the termination of the guardianship and clearance of his/her financial accountabilities. Husband and wife shall jointly adopt, except in the following cases: i) if one spouse seeks to adopt the legitimate son/daughter of the other; or ii) if
one spouse seeks to adopt his/her own illegitimate son/daughter: Provided, However, that the other spouse has signified
his/her consent thereto; or if the spouses are legally separated from each other.
iii)
In case husband and wife jointly adopt, or one
spouse adopts the illegitimate son/daughter of the other, joint parental authority shall be exercised by the spouses. Under the jurisdiction of the FAMILY COURT Under the jurisdiction of the INTER-COUNTRY ADOPTION BOARD (but a petition may also be where adopter resides. filed with the FAMILY COURT [where adoptee
resides] which will turn it over to ICAB). Trial custody is IN THE PHILIPPINES for 6 Trial custody is IN THE COUNTRY OF ADOPTER months (but court may reduce period or for 6 months and is mandatory before a exempt parties from trial custody). decree of adoption is issued. may include PRAYER for change of name, or declaration that child is PETITION FOR ADOPTION
PETITION FOR ADOPTION
only.
a foundling, abandoned, dependent or neglected child. ADOPTEE: Legitimate or illegitimate CHILD of a ADOPTEE: Only a CHILD LEGALLY spouse or even a person who is OF LEGAL AGE AVAILABLE for may be adopted. domestic adoption may be the subject of
inter-country adoption. ANNEXES: Income tax returns, police ANNEXES: Income tax returns, police clearance, character reference, family picture, clearance, character reference, family picture, birth certificate of adopter are NOT REQUIRED birth certificate of adopter are REQUIRED to be annexed in the petition. to be annexed in the petition.
Petition must be PUBLISHED at least once a NO PUBLICATION requirement. week for 3 successive weeks in a newspaper of
general circulation in the province or city where court is situated. Application is through a PETITION IN THE Application may be through AGENCY IN Family Court (FC).
FOREIGN COUNTRY and then submit to InterCountry Adoption Boar (ICAB) . Decree of adoption issued by FC which has Decree of adoption issued by a FOREIGN COURT . jurisdiction over case. (RA 8552 AND RA 8043)
4.12.2. DOMESTIC ADOPTION ACT a) What are the effects of adoption?
1.) Except in cases where the biological parent is the spouse of the adopter,
all legal ties between the biological parent(s) and the adoptee shall be severed and the same shall then be vested on the adopter(s). 2.) The adoptee shall be considered the legitimate son/daughter of the
adopter(s) for all intents and purposes and as such is entitled to all the rights and obligations provided by law to legitimate sons/daughters born to them without discrimination of any kind. To this end, the adoptee is entitled to love, guidance, and support in keeping with the means of the family. 3.) In legal and intestate succession, the adopter(s) and the adoptee shall
have reciprocal rights of succession without distinction from legitimate filiation. However, if the adoptee and his/her biological parent(s) had left a will, the law on testamentary succession shall govern. (Section 16-18 of RA 8552) What are the rights of the adoptee?
Being a legitimate child by virtue of her adoption, it follows that Stephanie is entitled to all the rights provided by law to a legitimate child without discrimination of any kind, including the right to bear the surname of her father and her mother, as discussed above . This is consistent with the intention of the members of the Civil Code and Family Law Committees as earlier discussed. (IN RE: Steph anie Garc ia, GR 148311, March 31, 2005) Right of the adoptee to use the surname of the adopter:
The law allows the adoptee, as a matter of right and obligation, to bear the surname
of the adopter, upon issuance of the decree of adoption. It is the change of the adoptee's surname to follow that of the adopter which is the natural and necessary consequence of a grant of adoption and must specifically be contained in the order of the court, in fact, even if not prayed for by petitioner. (RP vs . Hernand ez, G.R. No. 117209, Febr uar y 9, 1996)
The adoptee may use the surname of the adopter. The minor cannot bear adopter's surname as a married woman, for her husband has not joined in the petition for adoption and cannot join it, because he has children by a previous marriage and to allow the minor to adopt the surname of the husband of the adopter (where the husband had not), would mislead the public into believing that she (adoptee) has also been adopted by the husband, which is not the case. (Suarez vs.. Repub lic , L-20914 Decem ber 24, 1965). b) Instances when adoption may be rescinded
As provided in Section 19 of RA 8552 or the Domestic Adoption act, upon petition of the adoptee, with the assistance of the Department if a minor or if over eighteen (18) years of age but is incapacitated, as guardian/counsel, the adoption may be rescinded on any of the following grounds committed by the adopter(s): (a) repeated physical and verbal maltreatment by the adopter(s) despite having
undergone counseling;
(b) attempt on the life of the adoptee; (c) sexual assault or violence; or (d) abandonment and failure to comply with parental obligations.
Adoption, being in the best interest of the child, shall not be subject to rescission by the adopter(s). However, the adopter(s) may disinherit the adoptee for causes provided in A r t i c l e 9 1 9 o f t h e Civil Cod e. Adopter cannot rescind the adoption, but he can forfeit some benefits of the adoptee:
While R.A. No. 8552 has unqualifiedly withdrawn from an adopter a consequential right to rescind the adoption decree even in cases where the adoption might clearly turn out to be undesirable, it remains, nevertheless, the bounden duty of the Court to apply the law. It is noteworthy, however, that an adopter, while barred from severing the legal ties of adoption, can always for valid reasons cause the forfeiture of certain benefits otherwise accruing to an undeserving child e.g. valid disinheritance (Lahom vs. Sibulo, G.R. No . 143989, July 14, 2003) c) Effects of rescission of adoption:
1) Parental authority of biological parent or legal custody of DSWD will be restored;
2) Reciprocal rights of adoptee and adopter will be extinguished; 3) Vested rights acquired prior to judicial rescission shall be respected; 4) Successional rights shall revert to its status prior to adoption, as of the date
of judgment of judicial rescission; 5) Adoptee shall use the name stated in his original birth or foundling certificate; 6) Civil registrar will reinstate his original birth or foundling certificate . (Section 20, RA 8552) 4.12.3. INTER-COUNTRY ADOPTION What is inter-country adoption?
Inter-Country Adoption refers to the socio-legal process of adopting a Filipino child by a foreign national or a Filipino citizen permanently residing abroad . (Section 3 (a) RA 8043 )
When allowed? 1) Inter-country adoptions are allowed when the same shall prove beneficial to the child’s best interests, and shall serve and protect his/her fundamental rights (Sec. 2).
2) It is allowed when all the requirements and standards set forth under RA
8043 are complied with. 3) Maximum number that may be allowed for foreign adoption shall not exceed six hundred (600) a year for the first five (5) years. PROCEDURE: (A.M . No . 02-6-02-SC) 1) Filing of petition with the Family Court of the place where the prospective
adoptive parents reside – The petition may also pray for a change of name of the child.
No petition for adoption shall be set for hearing unless a licensed social worker has made a CASE STUDY of the adoptee, adopter and the biological parents (Sec. 11). 2) Order of Hearing –
A copy of the order of hearing shall be published at least once a week for 3 successive weeks in a newspaper of general circulation. At the discretion of the court, copies of the order shall also be furnished the Office of the Solicitor General. If a change of name of the adoptee is prayed for in the petition, notice to the Solicitor General is mandatory. The social worker shall verify with the Civil Registry the real identity and registered name of the adoptee. 3) Child and Home Study Report –
4) Hearing –
It shall be held within 6 months from the date of issuanc e of the order.
In case of application for change of name, hearing shall be held within 4 months after the last publication of notice nor within 30 days prior to an election. No petition for adoption shall be finally granted until the adopters have been given by the court a supervised trial custody period for at least six (6) months (Sec. 12). 5) Supervised Trial Custody –
6) Decree of Adoption – After
the publication of the order of hearing and no opposition has been interposed to the petition, a decree of adoption shall be entered stating the name by which the child is to be known which shall take effect as of the date the original petition was filed EVEN if petitioners die before its issuance. An amended birth certificate shall be issued. The original birth certificate shall be stamped "cancelled" and shall be sealed in the Civil Registry records. The new birth certificate to be issued to the adoptee shall not bear any notation that it is an amended issue (Sec. 14). (A.M. No . 02-6-02-SC) IN CASE OF RESCISSION/REVOCATION Venue:
The petition shall be filed with the Family Court of the city or province where the adoptee resides. Time within which to file petition .
The adoptee, if incapacitated, must file the petition for recission or revocation of adoption within five (5) years after he reaches the age of majority, or if he was imcompetent at the time of the adoption, within five (5) years after recovery from such incompetency. (Section 20 and 21 of RA A.M. No. 02-6-02-SC) c) “Best interest of the minor ” standard
The best interests of the minor and shall give paramount consideration to his material and moral welfare. The best interests of the minor refer to the totality of the circumstances and conditions as are most congenial to the survival, protection, and feelings of security of the minor encouraging to his physical, psychological and emotional development. It also means the least detrimental available alternative for safeguarding the growth and
development of the minor (Sec. 14[[A .M. No. 03-04-04-SC 2003-04-22]]. It would thus be against the spirit of the law if financial consideration were to be the paramount consideration in deciding whether to deprive a person of parental authority over his/her children. Again, it is the best interest of the child that takes precedence in adoption. ( Land ing in vs. Repu blic, G.R. No. 164948, June 27, 2006) 4.13. WRIT OF HABEAS CORPUS
What is a writ of habeas corpus?
Writ of habeas corpus is an order issued by the court commanding a person in custody of another to produce the body of the person on the place, date and time specified therein. Writ of habeas corpus not available in case a person is out on bail?
The law is well settled that a person out on bail is not so restrained of his liberty as to be entitled to a writ of habeas corpus. The restraint of liberty which would justify the issuance of the writ must be more than a mere moral restraint; it must be actual or physical . (Felipe Gon zales vs .. Viol a, G.R. No. L-43195, Au gu st 23, 1935)
When writ of habeas corpus may be issued?
The most basic criterion for the issuance of the writ, therefore, is that the individual seeking such relief be illegally deprived of his freedom of movement or placed under some form of illegal restraint. If an individual's liberty is restrained via some legal process, the writ of habeas corpus is unavailing. (In R e Reyn aldo De Villa, G.R. No. 158802, Nov emb er 17, 2004)
Consequently, the writ may also be availed of where, as a consequence of a judicial proceeding, (a) there has been a deprivation of a constitutional right resulting in the
restraint of a person, (b) the court had no jurisdiction to impose the sentence, or (c) an excessive penalty has been imposed, as such sentence is void as to such excess. (Feria vs. CA , G.R. No. 122954, February 15, 2000) 4.13.1. CONTENTS OF THE PETITION
Application for the writ shall be by petition signed and verified either by the party for whose relief it is intended, or by some person on his behalf, and shall set forth:
(a) That the person in whose behalf the application is made is imprisoned or
restrained of his liberty;
(b) The officer or name of the person by whom he is so imprisoned or
restrained; or, if both are unknown or uncertain, such officer or person may be described by an assumed appellation, and the person who is served with the writ shall be deemed the person intended; (c) The place where he is so imprisoned or restrained, if known; (d) A copy of the commitment or cause of detention of such person, if it can be
procured without impairing the efficiency of the remedy; or, if the imprisonment or restraint is without any legal authority, such fact shall appear. ( Section 3, Rule 102) * In paragraph b, or, if both persons are unknown or uncertain, such officer or
person may be described by an assumed appellation, and the person who is served with the writ shall be deemed the person intended. * In paragraph d, a copy of the commitment or cause of detention should set
forth, if it can be procured without impairing the efficiency of the remedy; or, if the imprisonment or restraint is without any legal authority, such fact shall appear. (FEU b ar reviewer, rem edial law 2014, page 153-154) 4.13.2. CONTENTS OF THE RETURN
When the person to be produced is imprisoned or restrained by an officer, the person who makes the return shall state therein, and in other cases the person in whose custody the prisoner is found shall state, in writing to the court or judge before whom the writ is returnable, plainly and unequivocably: a) Whether he has or has not the party in his custody or power, or under restraint;
b) If he has the party in his custody or power, or under restraint, the authority
and the true and whole cause thereof, set forth at large, with a copy of the writ, order, execution, or other process, if any, upon which the party is held; c) If the party is in his custody or power or is restrained by him, and is not
produced, particularly the nature and gravity of the sickness or infirmity of such party by reason of which he cannot, without danger, be brought before the court or judge; d) If he has had the party in his custody or power, or under restraint, and has
transferred such custody or restraint to another, particularly to whom, at what time, for what cause, and by what authority such transfer was made (Sec. 10).
4.13.3. DISTINGUISH PEREMPTORY WRIT FROM PRELIMINARY CITATION
Peremptory writ of h a b e a s c o r p u s , is one which unconditionally commands the
respondent to have the body of the detained person before the court at a time and place therein specified. The order served in the case before us was merely a preliminary citation or one which merely requires the respondent to appear and show cause why the peremptory writ should not be granted. ( L ee Y i c k H o n v s . I n s u l a r C o l l e c t o r O f Cu sto m s, G.R. No. L-16779, Marc h 30, 1921) 4.13.4. WHEN NOT PROPER/APPLICABLE
Ordinarily, the writ of habeas corpus will not be granted when there is an adequate remedy by writ of error or appeal or by writ of certiorari, it may, nevertheless, be available in exceptional cases, for the writ should not be considered subservient to procedural limitations which glorify form over substance. (39 C.J.S. Habeas Co rp us § 13, 486-488)
It must be kept in mind that in both habeas corpus and certiorari proceedings is whether an inferior court has exceeded its jurisdiction, the former involves a collateral attack on the judgment and "reaches the body but not the record," while the latter assails directly the judgment and "reaches the record but not the body." (Velasco vs. CA G.R. No. 118644 Jul y 7, 1995) 4.13.5. WHEN WRIT DISALLOWED/DISCHARGED
Section 4, Rule 102 provides: If it appears that the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or judge or by virtue of a judgment or order of a court of record , and that the court or judge had jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be allowed. ( In Re Ash raf K unt ing , G.R. No. 167193, Apri l 19, 2006 ) 4.13.6.
DISTINGUISH FROM WRIT OF AMPARO AND HABEAS DATA (See
m a t r i x o f distinctio ns b etween Habeas Corpus, Am paro and Habeas Data) 4.13.7. RULES ON CUSTODY OF MINORS AND WRIT OF HABEAS CORPUS IN
RELATION TO CUSTODY OF MINORS (A.M. NO. 03-04-04-SC) CUSTODY OF MINORS Petition for custody of minor falls within the jurisdiction of the Family Court:
A petition for the custody of minors is also provided in Rule 99, Section 1 which provides for a petition for adoption. The petition for custody of childre n is now within the
exclusive original jurisdiction of Family Courts, as provided in Republic Act No. 8369, Section 5(b) [Family Courts Act of 1997]. Rule on the custody of minor under seven years of age:
Under Article 213, second paragraph of the Family Code, no child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise. This rule, however, is not absolute. (Espiritu v s. Court Of Ap peals, G.R. No. 115640, March 15, 1995; Ord a vs. Cou rt Of A pp eals, G.R. No. 92625, Decemb er 26, 1990; Lu na vs . Interm ed iate App ellate Cou rt, No . L-68374, Ju ne 18, 1985)
WRIT OF HABEAS CORPUS IN RELATION TO CUSTODY OF MINORS Right to the custody required in a petition for writ of habeas corpus of minors:
The writ of habeas corpus extends to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto. Thus, it is the proper legal remedy to enable parents to regain the custody of a minor child even if the latter be in the custody of a third person of his own free will. (Tijing v s. CA , G.R. No. 125901, Marc h 8, 2001) Petitioners must convincingly establish that the minor in whose behalf the application for the writ is made is the person upon whom they have rightful custody. If there is doubt on the identity of the minor in whose behalf the application for the writ is made, petitioners cannot invoke with certainty their right of custody over the said minor . (Tijing vs. CA , G.R. No. 125901, March 8, 2001)
Habeas corpus in relation Post-Conviction DNA Testing Results: Sec. 10 of the DNA Evidence Rule ( A.M. No . 06-11-5-SC, Octo ber 15, 2007 )
provides for the rule on the post- conviction DNA Testing results and the remedy if favorable. It states that: ―SEC. 10. Post-conviction DNA Testing. Remedy if the Results Are Favorable to the Convict. — The convict or the prosecution may file a petition for a writ of habeas
corpus in the court of origin if the results of the post-conviction DNA testing are favorable to the convict. In case the court, after due hearing, finds the petition to be meritorious, it shall reverse or modify the judgment of conviction and order the release of the convict, unless continued detention is justified for a lawful cause. A similar petition may be filed either in the Court of Appeals or the Supreme Court, or with any member of said courts, which may conduct a hearing thereon or remand the petition to the court of origin and issue the appropriate orders. ‖
Writ of Habeas Corpus as comparable to summons
Considering that the writ is made enforceable within a judicial region, petitions for the issuance of the writ of habeas corpus, whether they be filed under Rule 102 of the Rules of Court or pursuant to Section 20 of A.M. No. 030404SC, may therefore be filed with any of the proper RTCs within the judicial region where enforcement thereof is sought. As regards petitioner ’s assertion that the summons was improperly served, suffice it to state that service of summons, to begin with, is not required in a habeas corpus petition, be it under Rule 102 of the Rules of Court or A.M. No. 030404SC. As held in Saulo v. Cruz, 105 Phil. 315 (1959), a writ of habeas corpus plays a role somewhat comparable to a summons, in ordinary civil actions, in that, by service of said writ, the court acquires jurisdiction over the person of the respondent. MA. HAZELINA A. TUJAN-MILITANTE vs RAQUEL CADA-DEAPARA G.R. No. 210636, July 28, 2014,
J. Velasco, Jr 4.14. WRIT OF AMPARO (A.M. NO. 07-9-12-SC): 4.14.1. COVERAGE
The Amparo Rule was intended to address the intractable problem of (1) "EXTRALEGAL KILLINGS" and (2) "ENFORCED DISAPPEARANCES," its coverage, in its present form, is confined to these two instances or to threats thereof. "Extralegal killings" are "killings committed without due process of law, i.e., without legal safeguards or judicial proceedings." (Secretar y of Defen se vs. Manalo , G.R. No. 180906, Oc tob er 7, 2008) Ma. Christina YusayCaram then filed a petition for the issuance of writ of amparo before the Regional Trial Court in order to compel the DSWD (Department of Social Welfare and Development) to produce and give back to her infant Julian. The DSWD and the Office of the Solicitor General opposed the motion contending that the remedy availed of by Christina is wrong- the proper remedy is to file a civil action and not a petition for the issuance of writ of amparo. The Supreme Court ruled that [t]he Amparo Rule was intended to address the intractable problem of "extralegal killings" and "enforced disappearances," its coverage, in its present form, is confined to these two instances or to threats thereof. "Extralegal killings" are "killings committed without due process of law, i.e., without legal safeguards or judicial proceedings." On the other hand, "enforced disappearances" are "attended by the following characteristics: an arrest, detention or abduction of a person by a government official or organized groupsor private individuals acting with the direct or indirect acquiescence of the government; the refusal of the State to disclose the fate or whereabouts of the person concerned or a refusal to acknowledge the deprivation of liberty which places such persons outside the protection of law. Infant JULIAN YUSA Y CARAM, represented by his mother, MA. CHRISTINA YUSAY CARAM vs. Atty. MARIJOY D. SEGUI, Atty. SALLY D. ESCUTIN, VILMA B. CABRERA, and CELIA C. YANGCO G.R. No. 193652, August 5, 2014, J. Villarama Confined only to cases of extrajudicial killings and enfroced disappearances
As it stands, the writ of amparo is confined only to cases of extrajudicial killings and enforced disappearances, or to threats thereof.Considering that this remedy is aimed at addressing these serious violations of or threats to the right to life, liberty and security, it cannot be issued on amorphous and uncertain grounds, or in cases where the alleged threat has ceased and is no longer imminent or continuing . Instead, it must be granted judiciously so as not to dilute the extraordinary and remedial character of the writ, thus: The privilege of the writ of amparo is envisioned basically to protect and guarantee the rights to life, liberty, and security of persons, free from fears and threats that vitiate the quality of this life. It is an extraordinary writ conceptualized and adopted in light of and in response to the prevalence of extra-legal killings and enforced disappearances. Accordingly, the remedy ought to be resorted to and granted judiciously, lest the ideal sought by the A m p a r o Rule be diluted and undermined by the indiscriminate filing of a m p a r o petitions for purposes less than the desire to secure A m p a r o reliefs and protection and/or on the basis of unsubstantiated allegations .(Emphasis supplied.) (RODOLFO NOEL LOZADA , JR., VIOLETA LOZADA and ARTURO LOZADA, vs. PRESIDENT GLORIA MACAPAGAL ARROYO, EDUARDO ERMITA, AVELINO RA ZON, ANGEL A TUTUBO and SPO4
*
ROGER VALEROSO, G.R. Nos . 184379-80, Ap ril 24, 2012)
Nature of the writ of amparo: Equitable and Extraordinary remedy
The remedy of the Writ of Amparo is an equitable and extraordinary remedy to safeguard the right of the people to life, liberty and security as enshrined in the 1987 Constitution. The Rule on the Writ of Amparo was issued as an exercise of the Supreme Court’s power to promulgate rules concerning the protection and enforcement of constitutional rights. It aims to address concerns such as, among others, extrajudicial killings and enforced disappearances. x x x It is clear from this rule that this type of summary procedure only applies to MTC/MTCC/MCTCs. It is mind-boggling how this rule could possibly apply to proceedings in an RTC. Aside from that, this Court limited the application of summary procedure to certain civil and criminal cases. A writ of Amparo is a special proceeding. It is a remedy by which a party seeks to establish a status, a right or particular fact. It is not a civil nor a criminal action, hence, the application of the Revised Rule on Summary Procedure is seriously misplaced. (Secretary Leila M. De Lima, Director Non natus R. Rojas and Deputy Director Reynaldo O. Esmeralda v. Magtanggol B . Gatdula; G.R. No. 204528. Febru ary 19, 2013)
The writ of amparo was promulgated by the Court pursuant to its rulemaking powers in response to the alarming rise in the number of cases of enforced disappearances and extrajudicial killings. It plays the preventive role of breaking the expectation of impunity in the commission of extralegal killings and enforced disappearances, as well as the curative role of facilitating the subsequent punishment of the perpetrators. In Tapuz v. Del Rosario , the Court has previously held that the writ of amparo is an extraordinary remedy intended to
address violations of, or threats to, the rights to life, liberty or security and that, being a remedy of extraordinary character, it is not one to issue on amorphous or uncertain grounds but only upon reasonable certainty. Hence, every petition for the issuance of the writ is required to be supported by justifying allegations of fact on the following matters: (a)
The personal circumstances of the petitioner;
The name and personal circumstances of the respondent responsible for the threat, act or omission, or, if the name is unknown or uncertain, the respondent may be described by an assumed appellation; (b)
(c) The
right to life, liberty and security of the aggrieved party violated or threatened with violation by an unlawful act or omission of the respondent, and how such threat or violation is committed with the attendant circumstances detailed in supporting affidavits; The investigation conducted, if any, specifying the names, personal circumstances, and addresses of the investigating authority or individuals, as well as the manner and conduct of the investigation, together with any report; (d)
The actions and recourses taken by the petitioner to determine the fate or whereabouts of the aggrieved party and the identity of the person responsible for the threat, act or omission; and (e)
The relief prayed for. The petition may include a general prayer for other just and equitable reliefs. (In th e Matter of the Petition fo r the (f)
I s s u a n c e o f a W r i t o f A m p a r o i n F a v o r o f L i l i b et h L a d a g a V s. M aj o r General Reynaldo Mapagu, Commanding General of the Philippine Arm y's 10th Infantry Divisio n, et al./In th e Matter of t he Petition for t he Issuance of a Writ of Am paro in Favor of A ngela A. Librado-Trinidad Vs. Major General Reynaldo Mapagu, Commanding General of the Philippine Army's 10th Infantry Division, et al.In the Matter fo the P et i t i o n f o r t h e Is s u a n c e o f a W r i t o f A m p a r o i n F av o r o f C a r lo s Isagani T. Zarate Vs. Major General Reynaldo Mapagu, Com mand ing t h
General of th e Philippin e Army' s 10 Infant ry Division , et
al . G.R. No . 189689/G.R. No. 189690/G.R. No . 189691, Nov emb er 13, 2012)
Objective as a curative remedy
Thus, if the Complaint filed before the DOJ had already progressed into a criminal case, then the latter action can more adequately dispose of the allegations made by
petitioners. After all, one of the ultimate objectives of the writ of amparo as a curative remedy is to facilitate the subsequent punishment of perpetrators. (RODOLFO NOEL LOZADA, JR., VIOLETA LOZADA and ARTURO LOZADA, vs. PRESIDENT GLORIA MACAPAGAL ARROYO, EDUARDO ERMITA, AVELINO RAZON, ANGEL
*
ATUTUBO and SPO4 ROGER VALEROSO, G.R. Nos. 184379-80, April 24, 2012)
It is PREVENTIVE in that it breaks the expectation of impunity in the commission of these offenses; it is CURATIVE in that it facilitates the subsequent punishment of perpetrators as it will inevitably yield leads to subsequent investigation and action. In the long run , the goal of both the preventive and curative roles is to deter the further commission of extralegal killings and enforced disappearances. (Secretary o f Defense vs. Man alo, G.R. No. 180906, Octob er 7, 2008)
4.14.2. DISTINGUISH FROM HABEAS CORPUS AND HABEAS DATA (See matrix
o f d i s t in c t i o n s b e t w e e n H a b e as C o r p u s , A m p a r o a n d H a b e a s D a t a) 4.14.3. DIFFERENCES BETWEEN AMPARO AND SEARCH WARRANT
The writ applies to extralegal/extrajudicial killings and enforced disappearances or threats thereof while a search warrant is an order in writing issued in the name of the People of the Philippines, signed by a judge and directed to a peace officer, commanding him to search for personal property described therein and bring it before the court. (Secretary o f Defen se vs . Man alo, G.R. No . 180906, Octo ber 7, 2008)
Procedures
Due to the delicate and urgent nature of these controversies, the procedure was devised to afford swift but decisive relief. It is initiated through a petition to be filed in a Regional Trial Court, Sandiganbayan, the Court of Appeals, or the Supreme Court. The judge or justice then makes an ―immediate‖ evaluation of the facts as alleged in the petition and the affidavits submitted ―with the attendant circumstances detailed‖. After evaluation, the judge has the option to issue the Writ of Amparo or immediately dismiss the case. Dismissal is proper if the petition and the supporting affidavits do not show that the petitioner ’s right to lie liberty or security is under threat or the acts complained of are not unlawful. On the other hand, the issuance of the writ itself sets in motion presumptive judicial protection for the petitioner. The court compels the respondents to appear before a court of law to show whether the grounds for more permanent protection and interim relies are necessary.
The respondents are required to file a Return after the issuance of the writ through the clerk of court. The Return serves as the responsive pleading to the petition. Unlike an Answer, the Return has other purposes aside form identifying the issues in the case, Respondents are also required to detail the actions they had taken to determine the fate or whereabouts of the aggrieved party.
If the respondents are public officials or employees, they are also required to state the actions they had taken to: (i) verify the identity of the aggrieved party; (ii) recover and preserve evidence related to the death or disappearance of the person identified in the petition; (iii) identify witnesses and obtain statements concerning the death or disappearance; (iv) determine the cause, manner, location, and time of death or disappearance as well as any patter or practice that may have brought about the death or disappearance; and (v) bring the suspected offenders before a competent court. Clearly these matters are important to the judge so that s/he can calibrate the means and methods that will be required to further the protections, if any, that will be due to the petitioner. There will be a summary hearing only after the Return is filed to determine the merits of the petition and whether interim reliefs are warranted. If the Return is not filed, the hearing will be done ex parte. After the hearing, the court will render the judgment within ten (10) days from the time the petition is submitted for decision. If the allegations are proven with substantial evidence, the court shall grant the privilege of the writ and such reliefs as may be proper ans appropriate. The judgment should contain measures which the judge views as essential for the continued protection of the petitioner in the Amparo case. These measures must be detailed enough o that the judge may be able to verify and monitor the actions taken by the respondents. It is this judgment that could be subject to appeal to the Supreme Court via Rule 45. After the measures have served their purpose, the judgment will be satisfied. In Amparo cases, this is when the threats to the petitioner ’s life, liberty and security cease to exist as evaluated by the court that renders the judgment. Parenthetically, the case may also be terminated through consolidation should a subsequent case be filed – either criminal or civil. Until the full satisfaction of the judgment, the extraordinary remedy of Amparo allows vigilant judicial monitoring to ensure the protection of constitutional rights. (Secretary Leila M. De Lima, D i r e c t o r No n n a t u s R. Rojas and Depu ty Directo r Reynaldo O. Esm eralda v. Magtang go l B. Gatdula; G.R. No. 204528. Febr uary 19, 2013) 4.14.4. WHO MAY FILE
The Rules on Writ of Amparo provides: Section 1. Petition. – The petition for a writ of amparo is a remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. The writ shall cover extralegal killings and enforced disappearances or threats thereof.
Writ of amparo not available in case of demolition of dwelling of squatters by final judgment:
The threatened demolition of a dwelling by virtue of a final judgment of the cou rt, which in this case was affirmed with finality, is not included among the enumeration of rights as stated in the above-quoted Section 1 for which the remedy of a writ of amparo is made available. (Canlas v s. Napic o, G.R. No . 182795, Jun e 5, 2008)
Who may file the petition? Section 2 of the Rule on the Writ of Amp aro
provides:
The petition may be filed by the aggrieved party or by any qualified person or entity in the following order: (a) Any member of the immediate family, namely: the spouse, children
and parents of the aggrieved party; (b) Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph; or (c) Any concerned citizen, organization, association or institution, if there is no known member of the immediate family or relative of the aggrieved party. Order of succession must be followed: mandatory and exclusive:
The exclusive and successive order mandated by the above-quoted provision must be followed. The order of priority is not without reason —"to prevent the indiscriminate and groundless filing of petitions for Amparo which may even prejudice the right to life, liberty or security of the aggrieved party." ( B oac , Et.Al. vs. Cadap an & ) Emp eno , G.R. Nos. 184461-62 , May 31, 2011 Contents of the petition:
Rule on the Writ of Amparo - in line with the extraordinary character of the writ and the reasonable certainty that its issuance demands - requires that every petition for the issuance of the Writ must be supported by justifying allegations of fact, to wit: "(a) The personal circumstances of the petitioner; (b) The name and personal circumstances of the respondent responsible for the threat, act or omission, or, if the name is unknown or uncertain, the respondent may be described by an assumed appellation; (c) The right to life, liberty and security of the aggrieved party violated or threatened
with violation by an unlawful act or omission of the respondent, and how such threat or
violation is committed with the attendant circumstances de tailed in supporting affidavits;
(d) The investigation conducted, if any, specifying the names, personal circumstances, and addresses of the investigating authority or individuals, as well as the manner and conduct of the investigation, together with any report ; (e) The actions and recourses taken by the petitioner to determine the fate or
whereabouts of the aggrieved party and the identity of the person responsible for the threat, act or omission; and (f) The relief prayed for. ( Sectio n 5, A.M. No. 07-9-12-SC) When can the court issue a writ of amparo?
The writ shall issue if the Court is preliminarily satisfied with the prima facie existence of the ultimate facts determinable from the supporting affidavits that detail the circumstances of how and to what extent a threat to or violation of the rights to life, liberty and security of the aggrieved party was or is being committed. (Tapuz v s. Del Rosari o, G.R. No . 182484, Jun e 17, 2008)
WHAT NEEDS TO BE PROVED Allegation and proof that the persons subject thereof are missing are not enough x x x for the protective writ of amparo to issue, allegation and proof that the persons subject thereof are missing are not enough. It must also be shown and proved by substantial evidence that the disappearance was carried out by, or with the authorization, support or
acquiescence of, the State or a political organization, followed by a refusal to acknowledge the same or give information on the fate or whereabouts of said missing persons, with the intention of removing them from the protection of the law for a prolonged period of time. Simply put, the petitioner in an amparo case has the burden of proving by substantial evidence the indispensable element of government participation. x x x (Egardo N a v i a, R u b e n D i o a n d A n d r e w B u i s i n g v s . V ir g i n i a P a r d i c o , f o r a n d i n b e h a l f in represen tation of B enhu r Pardico ., G.R. No. 184467, Jun e 19, 2012)
Petitioner must prove the existence of a continuing threat
In cases where the violation of the right to life, liberty or security has already ceased, it is necessary for the petitioner in an amparo action to prove the existence of
[
a continuing threat. Thus, this Court held in its Resolution in Razon v. Tagitis : Manalo is different from Tagitis in terms of their factual settings, as enforced disappearance was no longer a problem in that case. The enforced disappearance of the brothers Raymond and Reynaldo Manalo effectively ended when they escaped from captivity and surfaced, while Tagitis is still nowhere to be found and remains missing more than two years after his reported disappearance. An Amparo
situation subsisted in Manalo, however, because of the continuing threat to the brothers’ right to security ; the brothers claimed that since the persons responsible for their
enforced disappearance were still at large and had not been held accountable, the former were still under the threat of being once again abducted, kept captive or even killed, which threat constituted a direct violation of their right to security of person. (Emphasis supplied.) (RODOLFO NOEL LOZADA, JR., VIOLETA LOZADA and ARTURO LOZADA, vs. PRESIDENT GLORIA MACA PAGA L A RROYO, EDUARDO ERMITA, AVELINO RAZON,
* ANGEL A TUTUBO and SPO4 ROGER VALEROSO, G.R. Nos . 184379-80, Apr il 24, 2012)
Issuance of writ cannot be justified in the absence of continuing restraint on a person’s liberty
As previously discussed, there is no basis to grant Lozada the privilege of the writ of amparo, considering that the illegal restraint alleged in this case had already ceased and there is no imminent or continuing restriction on his liberty . In Castillo v. Cruz, this Court held as follows: Although respondents ’ release from confinement does not necessarily hinder supplication for the writ of amparo , absent any evidence or even an allegation in the petition that there is undue and continuing restraint on their liberty , and/or that there exists threat or intimidation that destroys the efficacy of their right to be secure in their persons, the issuance of the writ cannot be justified. (Emphasis supplied.) (RODOLFO NOEL LOZADA, JR., VIOLETA LOZADA and ARTURO LOZADA, vs. PRESIDENT GLORIA MACA PAGA L AR ROYO, EDUARDO ERMITA, AVELINO RAZON, ANGEL
*
ATUTUBO and SPO4 ROGER VALEROSO, G.R. No s. 184379-80, Ap ril 24, 2012)
Actual threat from all the facts and circumstances of the case can qualify as a violation that may be addressed under the rule on the writ of amparo
The alleged threat to herein petitioners' rights to life, liberty and security must be actual, and not merely one of supposition or with the likelihood of happening. And, when the evidence adduced establishes the threat to be existent, as opposed to a potential one, then, it goes without saying that the threshold requirement of substantial evidence in Amparo proceedings has also been met. Thus, in the words of Justice Brion, in the context of the Amparo rule, only actual threats, as may be established from all the facts and circumstances of the case, can qualify as a violation that may be addressed under the Rule on the Writ of Amparo . (In the Matter of the Petition for the Issuance of a Writ of Am paro in Favor of L ilibeth Ladaga Vs. Major General Reyn aldo Mapagu, Comm anding General of th e Philippin e Army 's 10th Infant ry Division , et al./In the Matter of th e Petition fo r the Issuance of a Writ of Am paro in Favor of Ang ela A. Librado - Trinidad Vs. Major General Reynaldo Mapagu, Comm anding General of the Philippin e Army's 10th Infantry Divis ion, et al.In the Matter fo the Petition fo r the Issuance of a Writ of Am paro in Favor of Carlos Isagani T.
Zarate Vs. Major General Reynaldo Mapagu, Commandin g General of the P h i l i p p i n e A r m y ' s 1 0 t h I n f a n t r y D i v i s i o n , e t a l . G.R. No. 189689/G.R. No. 189690/G.R. No. 189691, Novem ber 13, 2012) 4.14.5. CONTENTS OF RETURN:
Within seventy-two (72) hours after service of the writ, the respondent shall file a verified written return together with supporting affidavits which shall, among other things, contain the following: a) The lawful defenses to show that the respondent did not violate or threaten with violation the right to life, liberty and security of the aggrieved party, through any act or omission; b) The steps or actions taken by the respondent to determine the fate or whereabouts of the aggrieved party and the person or persons responsible for the threat, act or omission; c) All relevant information in the possession of the respondent pertaining to the threat, act or omission against the aggrieved party; and d) If the respondent is a public official or employee, the return shall further state the actions that have been or will still be taken: i. to verify the identity of the aggrieved party;
to recover and preserve evidence related to the death or disappearance of the person identified in the petition which may aid in the prosecution of the person or ii.
persons responsible; iii. to identify witnesses and obtain statements from them concerning the death or disappearance; iv. to determine the cause, manner, location and time of death or disappearance as well as any pattern or practice that may have brought about the death or disappearance; v. to identify and apprehend the person or persons involved in the death or disappearance; and vi. to bring the suspected offenders before a competent court. The return shall also state other matters relevant to the investigation, its resolution and the prosecution of the case. A general denial of the allegations in the petition shall not be allowed. (Section 9, A .M. No. 07-9-12- SC) 4.14.6. EFFECTS OF FAILURE TO FILE RETURN
In case the respondent fails to file a return, the court, justice or judge shall proceed to hear the petition ex parte (Section 12, A.M. No. 07-9-12-SC )
The return is the proper responsive pleading; memorandum is a prohibited pleading.
First the insistence on filing an Answer was inappropriate. It is the Return that serves as the responsive pleading for petitions for the issuance of Writs of Amparo. The requirement to file an Answer is contrary to the intention of the Court to provide a speedy remedy to those whose right to life, liberty and security are violated or are threatened to be violated. In utter disregard of the Rule on the Writ of Amparo, Judge Pampilo insisted on
issuing summons and requiring an Answer. x x x The Return in Amparo cases allows the respondents to frame the issues subject to a hearing. Hence, it should be done prior to the hearing, not after. A memorandum, on the other hand, is a synthesis of the claims of the party litigants and is a final pleading usually required before the case is submitted for decision. One cannot substitute for the other since these submissions have different functions in facilitating the suit. More importantly, a memorandum is a prohibited pleading under the Rule on the writ of Amparo. (Secretary Leila M. De Lima, Director Nonn atus R. Rojas and Deput y Director Reynaldo O. Esmeralda v. Magtanggol B. Gatdula; G.R. No. 204528. February 19, 2013 4.14.7. OMNIBUS WAIVER RULE
The respondent must plead all his defenses in the return. Failure to do so shall operate as a waiver of such defense not therein pleaded. ( S ectio n 10, A.M. No. 07-9-12-SC) 4.14.8. PROCEDURE FOR HEARING
SUMMARY HEARING ( S ec. 13) - The hearing on the petition shall be
summary in nature. However, the court, justice or judge may call for a preliminary conference. It shall be from day to day until completed and given the same priority as petitions for habeas corpus. 4.14.9. INSTITUTION OF SEPARATE ACTION
This Rule on Writ of Amparo shall not preclude the filing of separate criminal, civil or administrative actions. (Section 21, A.M. No. 07-9-12-SC) 4.14.10. EFFECT OF FILING OF A CRIMINAL ACTION
When a criminal action has been commenced, no separate petition for the writ shall be filed. The reliefs under the writ shall be available by motion in the criminal case. The procedure under this Rule shall govern the disposition of the reliefs available under the writ of Amparo. (Sectio n 22, A.M. No. 07-9-12-SC)
4.14.11. CONSOLIDATION:
When a criminal action is filed subsequent to the filing of a petition for the writ, the latter shall be consolidated with the criminal action. When a criminal action and a separate civil action are filed subsequent to a petition for a writ of amparo, the latter shall be consolidated with the criminal action. After consolidation, the procedure under this Rule shall continue to apply to the disposition of the reliefs in the petition. (Sectio n 23 o f A .M. No. 07-9-12-SC) 4.14.12. INTERIM RELIEFS AVAILABLE TO PETITIONER AND RESPONDENT
Interim Reliefs for Petitioner: Upon filing of the petition or at anytime before
final judgment, the court, justice or judge may grant any of the following reliefs: (a) Temporary Protection Order . –
The court, justice or judge, upon motion or motu proprio, may order that the petitioner or the aggrieved party and any member of the immediate family be protected in a government agency or by an accredited person or private institution capable of keeping and securing their safety. If the petitioner is an organization, association or institution referred to in Section 3(c) of this Rule, the protection may be extended to the officers involved. The Supreme Court shall accredit the persons and private institutions that shall extend temporary protection to the petitioner or the aggrieved party and any member of the immediate family, in accordance with guidelines which it shall issue. The accredited persons and private institutions shall comply with the rules and conditions that may be imposed by the court, justice or judge. (b) Inspection Order .
— The court, justice or judge, upon verified motion and
after due hearing, may order any person in possession or control of a designated land or other property, to permit entry for the purpose of inspecting, measuring, surveying, or photographing the property or any relevant object or operation thereon. The motion shall state in detail the place or places to be inspected. It shall be supported by affidavits or testimonies of witnesses having personal knowledge of the enforced disappearance or whereabouts of the aggrieved party. If the motion is opposed on the ground of national security or of the privileged nature of the information, the court, justice or judge may conduct a hearing in chambers to determine the merit of the opposition. The movant must show that the inspection order is necessary to establish the right of the aggrieved party alleged to be threatened or violated.
The inspection order shall specify the person or persons authorized to make the inspection and the date, time, place and manner of making the inspection and may prescribe other conditions to protect the constitutional rights of all parties. The order shall expire five
(5) days after the date of its issuance, unless extended for justifiable reasons. The court, justice or judge, upon verified motion and after due hearing, may order any person in possession, custody or control of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, or objects in digitized or electronic form, which constitute or contain evidence relevant to the petition or the return, to produce and permit their inspection, copying or photographing by or on behalf of the movant. (c) Production Order. –
The motion may be opposed on the ground of national security or of the privileged nature of the information, in which case the court, justice or judge may conduct a hearing in chambers to determine the merit of the opposition. The court, justice or judge shall prescribe other conditions to protect the constitutional rights of all the parties. (d) Witness Protection Order . –
The court, justice or judge, upon motion or motu proprio, may refer the witnesses to the Department of Justice for admission to the Witness Protection, Security and Benefit Program, pursuant to Republic Act No. 6981.
The court, justice or judge may also refer the witnesses to other government agencies, or to accredited persons or private institutions capable of keeping and securing their safety. In t e r i m R e l i e f s t o R e s p o n d e n t : Upon verified motion of the respondent and after due hearing, the court, justice or judge may issue an inspection order or production order under paragraphs (b) and (c) of the preceding section. A motion for inspection order under this section shall be supported by affidavits or testimonies of witnesses having personal knowledge of the defenses of the respondent. (Sectio n 14-15 of A.M. No. 07-9-12- SC)
Writ is an interlocutory order
The ―Decision ” dated 20 March 2012 assailed by the petitioners c o u l d n o t b e the judgment or final order that is appealable under Section 19 of the Rule on the Writ of Amparo. x x x
This ―Decision” pertained to the issuance of the writ under Section 6 of the Rule on the Writ of Amparo, not the judgment under Section 18. The ―Decision” is thus an interlocutory order, as suggested by the fact that temporary protection, production and inspection orders were given together with the decision. The temporary protection,
production and inspection orders are interim reliefs that may be granted by the court upon filing of the petition but before final judgment is rendered .( Secretary Leila M. De Lim a, D i r e c t o r N o n n a t u s R . R o j as a n d D e p u t y D i r e c t o r R e y n a l d o O . E s m e r a l d a v . M a g t a n g g o l B . G a td u l a; G.R. No. 204528. Febru ary 19, 2013 )
Difference between the privilege of the writ of amparo and the actual order called the writ of amparo. The privilege of the Writ of A m p a r o should be distinguished from the actual order called the Writ of Amparo. The privilege includes the availment of the entire procedure outlined in A.M. No. 07-9-12-SC, the rule on the Writ of Amparo. After examining the petition and its
attached affidavits, the Return and the evidence presented in the summary hearing, the judgment should detail the required acts from the respondent that will mitigate, if not totally eradicate, the violation of or threat to the petitioner ’s life, liberty or security. A judgment which simply grants ―the privilege of the writ ‖ cannot be executed. It is tantamount to a failure of the judge to intervene and grant judicial succor to the petitioner. Petitions filed to avail of the privilege of the Writ of Amparo arise out of very real and concrete circumstances. Judicial responses cannot be as tragically symbolic or ritualistic as ―granting the privilege of the Writ o f Amparo.” (Secretary L eila M. De Lima, Directo r N o n n a t u s R . R o j a s an d D e p u t y D i r e c t o r R e y n a l d o O . E s m e r a ld a v . M a g t a n g g o l B. Gatdula; G.R. No. 204528. Febru ary 19, 2013)
4.14.13.
QUANTUM OF PROOF IN APPLICATION FOR ISSUANCE OF WRIT OF AMPARO
of A.M. No. 07-9-12-SC provides that the parties shall establish their claims by substantial evidence. The respondent who is a private individual or entity must prove that ordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty. The respondent who is a public official or employee must prove that extraordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty. The respondent public official or employee cannot invoke the presumption that official duty has been regularly performed to evade responsibility or liability. Section 17
Requires only substantial evidence to make the appropriate interim and permanent reliefs available to petitioner
x x x The writ of amparo partakes of a summary proceeding that requires only substantial evidence to make the appropriate interim and permanent reliefs available to the petitioner. As explained in the Decision, it is not an action to determine criminal guilt requiring proof beyond reasonable doubt, or liability for damages requiring preponderance of evidence, or even administrative responsibility requiring substantial evidence. The
totality of evidence as a standard for the grant of the writ was correctly applied by this Court. x x x (IN THE MATTER OF THE PETITION FOR THE WRIT OF AMPARO A ND HAB EAS DATA
IN FAVOR OF NORIEL RODRIGUEZ, petitioner vs. GLORIA MACAPAGALARROYO, GEN. VICTOR S. IBRADO, PDG J ESUS AME VERSOZA, LT. GEN. DELFIN B ANGIT, MAJ. GEN. NESTOR Z. OCHOA, P/CSUPT. AMETO G. TOLENTINO, P/SSUPT. JUDE W. SANTOS, COL. REMIGIO M. DE VERA, an o fficer named M ATUTINA, LT. COL. MINA, CAL OG, GEORGE PAL ACPA C under the name " HARRY," ANTONIO CRUZ, AL DWIN " BONG" PASICOLAN and VINCENT CALL AGA N,respon dents G.R. No. 191805)
Substantial evidence required to warrant a finding that the state has violated amparo
The Court may be more yielding to the use of circumstantial or indirect evidence and logical inferences, but substantial evidence is still the rule to warrant a finding that the State has violated, is violating, or is threatening to violate, amparo petitioners' right to life, liberty or security. (In the Matter of the Petition for th e Issuance of a Writ of A mparo in Favor of Lilibeth Ladaga Vs. Major General Reynaldo Mapagu, Commanding General of the Philipp ine Arm y's 10th Infantry Divis ion, et al./In the Matter of th e P e t it i o n f o r t h e I s s u a n c e o f a W r i t o f A m p a r o i n F a v o r o f A n g e l a A . L i b r a d o - Tr i n i d a d Vs. Major General Reynaldo Mapagu, Commanding Gener al of the Philippine Ar my 's 10th Infantr y Divisio n, et al.In the Matter fo the Petition for th e Iss uanc e of a Writ of A mp aro in Favor of Carlo s Isagani T. Zarate Vs. Major General Reynaldo Mapagu, Comm anding General of the Philippine Ar my 's 10th Infantr y Division , et al. G.R. No. 189689/G.R. No . 189690/G.R. No . 189691, No vem ber 13 , 2012)
STANDARD OF RELAXED ADMISSIBILITY OF EVIDENCE
Thus, in Razon, Jr. v. Tagitis , the Court laid down a new standard of relaxed admissibility of evidence to enable Amparo petitioners to meet the required amount of proof showing the State's direct or indirect involvement in the purported violations and found it a fair and proper rule in amparo cases ―to consider all the pieces of evidence adduced in their totality‖ and ―to consider any evidence otherwise inadmissible under our usual rules to be admissible if it is consistent with the admissible evidence adduced .‖ Put simply,
evidence is not to be rejected outright because it is inadmissible under the rules for as long as it satisfies ―the most basic t est of reason – i.e., relevance of the evidence to the issue at hand and its consistency with all other pieces of adduced evidence. (In the Matter o f the Petition for the Issuance of a Writ of A mparo in Favor of L ilibeth Ladaga Vs. Major General Reynaldo Mapagu, Commanding General of the Philippine Army 's 10th Infantry Division , et al./In the Matter of the Petition for the Issuance of a Writ of Amp aro in Favor of An gela A. Libr ado-Trinidad Vs. Major General Reynaldo Mapagu, Commandin g General of th e Philippine Ar my's 10th Infantry Division , et al.In the Matter fo th e Petition for the Issuanc e of a Writ of Am paro i n Favor of Carlos Isagani T. Zarate Vs. Major General Reynaldo Mapagu, Commanding General of the Philippine Army 's 10th Infantry Division , et al. G.R. No . 189689/G.R. No. 189690/G.R. No. 189691, Novem ber 13, 2012)
Writ of amparo available in case of extrajudicial killings and forced disappearance:
Writ of Amparo is swift, it is resolved through summary proceedings and the availability of appropriate interim and permanent reliefs under the Amparo Rule, this hybrid writ of the common law and civil law traditions - borne out of the Latin American and Philippine experience of human rights abuses - offers a better remedy to extralegal killings and enforced disappearances and threats thereof. The remedy provides rapid judicial relief as it partakes of a summary proceeding that requires only substantial evidence (Secretary o f Defen se vs . Man alo, G.R. No . 180906, Octo ber 7, 2008) 4.15. WRIT OF HABEAS DATA (A.M. NO. 08-1-16-SC)
NATURE OF THE WRIT: AN INDEPENDENT AND SUMMARY REMEDY
The writ of habeas data is an independent and summary remedy designed to protect the image, privacy, honor, information, and freedom of information of an individual, and to provide a forum to enforce one ’s right to the truth and to informational privacy. It seeks to protect a person ’s right to control information regarding oneself, particularly in instances in which such information is being collected through unlawful means in order to achieve unlawful ends. It must be emphasized that in order for the privilege of the writ to be granted, there must exist a nexus between the right to privacy on the one hand, and the right to life, liberty or security on the other. (MARYNETTE R. GAMB OA v s. P/SSUPT. MARLOU C. C H A N , i n h i s c a p a c i t y a s t h e P N P - Pr o v i n c i a l D i re c t o r o f Il o c o s N o r t e , an d P/SUPT. WILLIAM 0. FANG, in his capacity as Intelligence Division, PNP Pro vin cial Offi ce, Iloc os No rte., G.R. No. 19636, Ju ly 24, 2012)
Even assuming that the photos in issue are visible only to the sanctioned students ’ Facebook friends, respondent STC can hardly be taken to task for the perceived privacy invasion since it was the minors ’ Facebook friends who showed the pictures to Tigol. Respondents were mere recipients of what were posted. They did not resort to any unlawful means of gathering the information as it was voluntarily given to them by persons who had legitimate access to the said posts. Clearly, the fault, if any, lies with the friends of the minors. Curiously enough, however, neither the minors nor their parents imputed any violation of privacy against the students who showed the images to Escudero. Furthermore, petitioners failed to prove their contention that respondents reproduced and broadcasted the photographs. In fact, what petitioners attributed to respondents as an act of offensive disclosure was no, more than the actuality that respondents appended said photographs in their memorandum submitted to the trial court in connection… These are not tantamount to a violation of the minor ’s informational privacy rights, contrary to petitioners ’ assertion. RHONDA AVE S. VIVARES AND SPS. MARGARITA AND DAVID SUZARA vs. ST. THERESA’S
COLLEGE, MYLENE RHEZA T. ESCUDERO, AND JOHN DOES, G.R. No. 202666, September 29, 2014, J. Velasco, Jr.
4.15.1. SCOPE OF WRIT
S e c t i o n 1 o f t h e R u l e o n t h e W r i t o f H a b e as D a t a
provides:
Section 1. Habeas Data. – The writ of habeas data is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party. The habeas data rule, in general, is designed to protect by means of judicial complaint the image, privacy, honor, information, and freedom of information of an individual. It is meant to provide a forum to enforce one ’s right to the truth and to informational privacy, thus safeguarding the constitutional guarantees of a person ’s right to life, liberty and security against abuse in this age of information technology. (Meralco vs Lim, G.R. No. 18476, Octob er 5, 2010)
It bears reiteration that like the writ of amparo, habeas data was conceived as a response, given the lack of effective and available remedies, to address the extraordinary rise in the number of killings and enforced disappearances. Its intent is to address violations of or threats to the rights to life, liberty or security as a remedy independently from those provided under prevailing Rules. (Meralco vs Lim , G.R. No. 18476, Octob er 5, 2010) 4.15.2. AVAILABILITY OF WRIT
The writ can be invoked by such person to: 1) Find out the information collated about him, particularly by law
enforcement agencies, and 2) Compel them to disclose the use and purpose of such information.
When such writ cannot be invoked:
A Habeas Data Petition is dismissible if it fails to adequately show that there exists a nexus between the right to privacy on the one hand, and the right to life, liberty or security on the other. Moreover, it is equally dismissible if it is not supported by substantial evidence showing an actual or threatened violation of the right to privacy in life, liberty or security of the victim. DR. JOY MARGATE LEE vs. P/SUPT. NERI A. ILAGA G.R. No. 203254, October 08, 2014, J. Perlas-Bernabe
4.15.3. DISTINGUISHED FROM HABEAS CORPUS AND AMPARO (See matrix
o f d i s t in c t i o n s b e t w e e n H a b e as C o r p u s , A m p a r o a n d H a b e a s D a t a) 4.15.4. CONTENTS OF THE PETITION
A verified written petition for a writ of habeas data should contain: (a) The personal circumstances of the petitioner and the respondent; (b) The manner the right to privacy is violated or threatened and how it affects
the right to life, liberty or security of the aggrieved party; (c) The actions and recourses taken by the petitioner to secure the data or information; (d) The location of the files, registers or databases, the government office, and the person in charge, in possession or in control of the data or information, if known; The reliefs prayed for, which may include the updating, rectification, suppression or destruction of the database or information or files kept by the respondent. (e)
In case of threats, the relief may include a prayer for an order enjoining the act complained of; and (f) Such other relevant reliefs as are just and equitable . (Section 6, A. M. No. 08-1-16-SC) Threat must be supported by independent and credible evidence
It must be stressed, however, that such ―threat‖ must find rational basis on the surrounding circumstances of the case. In this case, the petition was mainly anchored on the alleged threats against his life, liberty and security by reason of his inclusion in the military ’s order of battle, the surveillance and monitoring activities made on him, and the intimidation exerted upon him to compel him to be a military asset. While as stated earlier, mere threats fall within the mantle of protection of the writs of amparo and habeas data, in the petitioner ’s case, the restraints and threats allegedly made allegations lack corroborations, are not supported by independent and credible evidence, and thus stand on nebulous grounds. (In th e matter of the petition f or the w r i t o f A m p a r o a n d t h e w r i t o f H a b ea s D at a in favo r of Franc is Saez, petition er vs. GLORIA MACA PAGA L A RROYO, GEN. HERMOGENES ESPERON, P/DIR. GEN. AVELINO RAZON, 22Nn MICO, CAPT. LA WRENCE BA NAA G, SGT. CASTILL O, CAPT. ROMMEL GUTIERREZ, CAPT. JA KE OB LIGADO, CPL. ROMAN ITO QUINT ANA , PVT. JERICO DUQUIL, CPL. ARIEL FONTANILL A, A CERTA IN CAPT. AL CA YDO, A CERTA IN FIRST SERGEANT, PVT. ZAL DY OSlO, A CERTA IN PFC. SONNY, A CERTAIN CPL.
JA MES, A CERTAIN JOEL, RODERICK CLA NZA and JEFFREY GOMEZ, respo nd ents, G.R. No. 183533, Septemb er 25, 2012)
SUFFICIENT COMPLIANCE FOR ISSUANCE OF WRIT
In the present case, the Court notes that the petition for the issuance of the privilege of the writs of amparo and habeas data is sufficient as to its contents. The petitioner made
specific allegations relative to his personal circumstances and those of the respondents. The petitioner likewise indicated particular acts, which are allegedly violative of his rights and the participation of some of the respondents in their commission. As to the prerequisite conduct and result of an investigation prior to the filing of the petition, it was explained that the petitioner expected no relief from the military, which he perceived as his oppressors, hence, his request for assistance from a human rights organization, then a direct resort to the court. Anent the documents sought to be the subject of the writ of habeas data prayed for, the Court finds the requirement of specificity to have been satisfied. The documents subject of the petition include the order of battle, those linking the petitioner to the CPP and those he signed involuntarily, and military intelligence reports making references to him. Although the exact locations and the custodians of the documents were not identified, this does not render the petition insufficient. Section 6(d) of the Rule on the Writ of Habeas Data is clear that the requirement of specificity arises only when the exact locations and identities of the custodians are known. The Amparo Rule was not promulgated with the intent to make it a token gesture of concern for constitutional rights. Thus, despite the lack of certain contents, which the Rules on the Writs of Amparo and Habeas Data generally require, for as long as their absence under exceptional circumstances can be reasonably justified, a petition should not be susceptible to outright dismissal. From the foregoing, the Court holds that the allegations stated in the petition for the privilege of the writs of amparo and habeas data filed conform to the rules. However, they are mere allegations, which the Court cannot accept ―hook, line and sinker ‖, so to speak, and whether substantial evidence exist to warrant the granting of the petition is a different matter altogether. (In the matter of the petition for the wr it of Am paro and the wr it of Habeas Data in favo r of Francis Saez, petition er vs. GLORIA MACA PAGAL ARROYO, GEN. HERMOGENES ESPERON, P/DIR. GEN. AVEL INO RAZON, 22Nn MICO, CA PT. LAW RENCE BA NAA G, SGT. CASTILL O, CAPT. ROMMEL GUTIERREZ, CAPT. JA KE OBL IGADO, CPL. ROMAN ITO QUINT ANA , PVT. JERICO DUQUIL, CPL. ARIEL FONTA NILLA , A CERTAIN CAPT. AL CA YDO, A CERTA IN FIRST SERGEANT, PVT. ZALDY OSlO, A CERTA IN PFC. SONNY, A CERTAIN CPL. JAMES, A CERTAIN JOEL, RODERICK
CLA NZA and JEFFREY GOMEZ, respond ents, G.R. No. 183533, September 25, 2012) 4.15.5. CONTENTS OF RETURN
The respondent shall file a verified written return together with supporting affidavits within five (5) working days from service of the writ, which period may be reasonably extended by the Court for justifiable reasons. The return shall, among other things, contain the following: (a) The lawful defenses such as national security, state secrets, privileged
communications, confidentiality of the source of information of media and others;
(b) In case of respondent in charge, in possession or in control of the data or
information subject of the petition; (i) a disclosure of the data or information about the petitioner, the nature of such data or information, and the purpose for its collection; (ii) the steps or actions taken by the respondent to ensure the security and confidentiality of the data or information; and, (iii) the currency and accuracy of the data or information held; and, (c) Other allegations relevant to the resolution of the proceeding.
A general denial of the allegations in the petition shall not be allowed.
(Sectio n 10, A.
M. No. 08 -1-16- SC) 4.15.6. INSTANCES WHEN PETITION MAY BE HEARD IN CHAMBERS
A hearing in chambers may be conducted where the respondent invokes the defense that the release of the data or information in question shall compromise national security or state secrets, or when the data or information cannot be divulged to the public due to its nature or privileged character. (Section 12, A. M. No . 08-1-16-SC) 4.15.7. CONSOLIDATION
When a criminal action is filed subsequent to the filing of a petition for the writ, the latter shall be consolidated with the criminal action. When a criminal action and a separate civil action are filed subsequent to a petition for a writ of habeas data, the petition shall be consolidated with the criminal action. After consolidation, the procedure under this Rule shall continue to govern the disposition of the reliefs in the petition. (Sectio n 21, A. M. No. 08-1-16-SC) 4.15.8. EFFECT OF FILING OF A CRIMINAL ACTION
When a criminal action has been commenced, no separate petition for the writ shall be filed. The relief under the writ shall be available to an aggrieved party by motion in the criminal case. The procedure under this Rule shall govern the disposition of the reliefs available under the writ of habeas data. (Sectio n 22, A . M. No. 08-1-16-SC) 4.15.9. INSTITUTION OF SEPARATE ACTION
The filing of a petition for the writ of habeas data shall not preclude the filing of separate criminal, civil or administrative actions. (Section 20, A. M. No. 08-1-16-SC )
4.15.10. QUANTUM OF PROOF IN APPLICATION FOR ISSUANCE OF WRIT OF HABEAS DATA
As to the Writ of Habeas Data, it is indispensable requirement before the privilege of the writ may be extended is the showing, at least by substantial evidence, of an actual or threatened violation of the right to privacy in life, liberty or security of the victim. This, in the case at bench, the petitioner failed to do. ( R oxas vs. Macapagal-Arro yo , G.R. No. 189155, September 7, 2010 )
Substantial evidence required
Given that the totality of the evidence presented by the petitioner failed to support his claims, the reliefs prayed for, therefore, cannot be granted. The liberality accorded to amparo and habeas data cases does not mean that a claimant is dispensed with the onus of proving his case. ―Indeed, even the liberal standard of substantial evidence demands some adequate evidence. (In the matter of the petition for th e writ of Am paro and the w rit of Habeas Data in favo r of Francis Saez, petition er vs. GLORIA MACA PAGAL ARROYO, GEN. HERMOGENES ESPERON, P/DIR. GEN. AVELINO RA ZON, 22Nn MICO, CAPT. LA WRENCE BA NAAG, SGT. CASTILL O, CAPT. ROMMEL GUTIERREZ, CAPT. JAK E OBL IGADO, CPL. ROMAN ITO QUINT ANA , PVT. JERICO DUQUIL, CPL. ARIEL FONTA NILLA , A CERTAIN CAPT. AL CA YDO, A CERTA IN FIRST SERGEANT, PVT. ZALDY OSlO, A CERTA IN PFC. SONNY, A CERTAIN CPL. JA MES, A CERTA IN JOEL , RODERICK
CLA NZA and JEFFREY GOMEZ, respond ents, G.R. No. 183533, September 25, 2012)
Compliance with technical rules of procedure is ideal but it cannot be accorded primacy
Among the grounds cited by the CA in denying the petition for the issuance of the writs of amparo and habeas data was the defective verification which was attached to the petition. In Tagitis, supporting affidavits required under Section 5(c) of the Rule on the Writ of Amparo were not submitted together with the petition and it was ruled that the defect was fully cured when the petitioner and the witness personally testified to prove the truth of their allegations in the hearings held before the CA. In the instant case, the defective verification was not the sole reason for the CA ’s denial of the petition for the issuance of the writs of amparo and habeas data. Nonetheless, it must be stressed that although rules of procedure play an important rule in effectively administering justice, primacy should not be accorded to them especially in the instant case where there was at least substantial compliance with the requirements and where petitioner himself testified in the hearings to attest to the veracity of the claims which he stated in his petition. To conclude, compliance with technical rules of procedure is ideal but it cannot be accorded primacy. In the proceedings before the CA, the petitioner himself testified to prove the veracity of his allegations which he stated in the petition. Hence, the defect in the verification attached to the petition. Hence, the defect in the verification attached to the petition was deemed cured. (In the matter of the petition for the writ of Am paro and the writ of Habeas
Data in favor of Francis Saez, petitioner vs. GLORI A MACAPAGAL ARRO YO, GEN. HERMOGENES ESPERON, P/DIR. GEN. AVEL INO RAZO N, 22Nn MICO, CAPT. LAWRENCE BANAAG, SGT. CASTILLO, CAPT. ROMMEL GUTIERREZ, CAPT. JAK E OBL IGADO, CPL. ROMAN ITO QUINT ANA , PVT. JERICO DUQUIL, CPL. ARIEL FONTANILLA , A CERTAIN CAPT. ALCA YDO, A CERTAIN FIRST SERGEANT, PVT. ZALDY OSlO, A CERTAIN PFC. SONNY, A CERTAIN CPL. JAMES, A CERTAIN JOEL,
RODERICK CLA NZA an d J EFFREY GOMEZ, respon dents , G.R. No. 183533, Septem ber 25, 2012)
SUMMARY OF DISTINCTIONS BETWEEN THE WRIT OF AMA PARO, WRIT OF HABEA S CORPUS
A N D W R IT O F H A B E A S D A T A
LEGAL BASIS DATE OF EFFECTIVITY DEFINITION
WRIT OF HABEAS CORPUS
WRIT OF AMPARO
WRIT OF HEAS DATA
RULE 102 OF THE
A.M. No. 07-9-12-SC
A. M. No. 08-1-16-SC
October 24, 2007
February 2, 2008
REVISED RULES OF
COURT July 1, 1997 A command directed to the person detaining another, requiring him to produce the body of the person detained at a designated time and place, and to produce and to show cause and to explain the reason for detention.
A remedy available to A remedy available to any person whose right any person whose to life, liberty and right to privacy in security is violated or life, liberty or security is violated or threatened with violation by an unlawful threatened by an act or omission of a unlawful act or public official or omission of a public employee, or of a official or employee, private individual or or of a private entity. individual or entity engaged in the gathering, collecting or storing of data or information regarding the person,
SCOPE
1. To all cases of
Extralegal killings and illegal confinement or enforced
family, home and correspondence of the aggrieved party. 1. To all cases of violation or threat
detention by which any person is
disappearances or threats thereof.
to the privacy of a person, his family, home and correspondence
deprived of his liberty; 2. To all cases where the rightful custody of any person is
withheld thereto.
WHO MAY FILE
The most basic criterion for the issuance of the writ, therefore, is that the individual seeking
The petition may be filed by the aggrieved party or by any qualified person or entity in the following order:
such relief be illegally a) Any member of
the family,
deprived of his immediate namely: the spouse, freedom of movement or placed children and parents of the aggrieved party; under some form of ascendant, illegal restraint. If an b) Any or individual's liberty is descendant restrained via some collateral relative o legal process, the writ the aggrieved party of habeas corpus is within the fourth civil o unavailing. (In Re degree or Reynaldo De Villa, consanguinity G.R. No. 158802, affinity, in default o those mentioned in the November 17, 2004) preceding paragraph; or
2. To all habeas corpus and amparo cases. (It complements the two writs by helping produce or correct data that is relevant to protect the rights of a person who disappeared or is a victim of extrajudicial killing) The writ of habeas data is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee or of a private
individual or entity engaged in the gathering, collecting or storing of data or information regarding the person,
family, home and correspondence of the c) Any concerned citizen, aggrieved party. organization, association
or
institution, if there is no known member of
the immediate family or relative of the aggrieved party. The exclusive and successive order mandated by the above-
quoted provision must be followed to prevent the indiscriminate and groundless filing of petitions for amparo which may even prejudice the right to life, liberty or security of
the aggrieved party." (Boac, Et.Al. vs.. Cadapan & Empeno, G.R. Nos. 184461-62 , May 31, 2011) WHERE TO FILE
1.
Regional Trial Court
1. RTC
of the place where 1. RTC where the
the threat, act or petitioner or 2. Court of Appeals or omission was respondent resides, any member thereof committed or any of its or that which has elements occurred. jurisdiction over the place where the 3. Supreme Court or any member thereof 2. Sandiganbayan, data or information 3. CA or any of its Justices is gathered, SC or any of its Justices collected or stored, at the option of the petitioner. 2.
SC or the CA or the
Sandiganbayan when the action concerns public data
WHEN TO FILE
files of government offices. -NOTHING IS Within 72 hours after Within 5 working STATED IN service of the writ, with days from service of THE RULEsupporting affidavit the writ, with supporting affidavit (may be extended by
the Court for justifiable reasons) Forfeit to the party
Imprisonment or Fine PUNISHMENT FOR aggrieved the sum of for Contempt REFUSAL OR FILING one thousand pesos OF FALSE RETURN (P1000) or have the
Imprisonment or Fine
for Contempt
party failing to file the
return be cited for Contempt. Sources and Legal Basis: Rule 102, A.M. NO. 07-9-12-SC, A.M. NO. 08-1-16SC, Special Proceedings by Gemylito Festin ) 4.16. CHANGE OF NAME
In special proceedings for change of name, what is involved is not a mere matter of allowance or disallowance of the request, but a judicious evaluation of the sufficiency and propriety of the justifications advanced in support thereof, mindful of the consequent results in the event of its grant and with the sole prerogative for making such determination being lodged in the courts. (RP vs. CA & Maximo Wong, G.R. No. 97906 May 21, 1992 ) 4.16.1. DIFFERENCES UNDER RULE 103, R.A. NO. 9048 AND RULE 108
SUMMARY OF DISTINCTIONS BETWEEN RULE 103, RULE 108 AND RA 9048
Rule 103
Rule 108
RA 9048
Change of Name Name of Law Subject Matter
Cancellation or Clerical Error Law Correction of Entries in the Civil Registry Change of full name Change or correction Change of first name in the civil registry and nickname and (Substantial corrections) (Substantial civil entries ( o n l y corrections )
Who may File
A person desiring to Any person interested change his name in any act, event, (Section 1) order or decree concerning the civil status of persons which has been recorded in the civil register. (Section 1)
typog raphical or Clerical error s)
Any person having direct and personal interest in the correction of a clerical or typographical error
in an entry and/or change of first name or nickname. ( S e c t i o n
3)
Venue
RTC of the province in which petitioner resides for three years prior to filing, or, in the City of Manila, to the Juvenile and Domestic Relations Court
RTC of City or
province where the corresponding civil registry is located.
1.) Local civil registry office of the city or municipality where the record being sought to be corrected or changed is kept.
Local civil 2.) registrar of the place where the interested party is presently residing or domiciled. Philippine Consulates. (Section 3)
Contents of the A petition for change a) That the petitioner The petition shall be Petition of name shall be has been a bona in the form of an signed and verified fide resident of affidavit, subscribed
by the person desiring his name changed, or some
other person on his behalf, and shall set forth: a) That
the petitioner
has been a bona fide
resident of the province where the petition is filed for at least three (3) years prior to the date of such filing; b) The
cause for which
the change of the petitioner's name is sought; The name asked for. ( S ec t i o n 2 )
the province where and sworn to before the petition is filed for any person authorized at least three (3) years by the law to administer oaths. The prior to the date of affidavit shall set forth such filing; ) The
cause for which facts necessary to the change of the establish the merits of petitioner's name is the petition and shall sought; show affirmatively The name asked for. that the petitioner is ( Se c t i o n 2 ) competent to testify to the matters stated. The petitioner shall state the particular erroneous entry or entries, which are sought to be
corrected and/or the change sought to be made. The petition shall be supported with the following documents:
A certified true machine copy of the certificate or of the page of the registry book containing the entry or entries sought to be corrected or changed. At least two (2) public or private documents showing the correct entry or entries upon which the correction or change shall be based; and Other documents which the petitioner or the city or municipal civil registrar or the consul general may consider relevant and necessary for the approval of the petition. The petition and its supporting papers shall be filed in three
(3) copies to be distributed as follows: first copy to the concerned city or municipal civil registrar, or the consul general; second copy to the Office of the Civil Registrar General; and third copy to the petitioner. (Section 5)
Grounds
a)
when the
name is Upon good and valid ridiculous, grounds, the entries dishonorable or in the civil register extremely difficult may be cancelled or to write or corrected. ( Se c t i o n 2 )
pronounce; b) when the
change results as a legal consequence such
as legitimation; c) when the change will avoid confusion; d) when one has continuously used and been known since childhood by a Filipino name, and was unaware of
The petition for change of first name or nickname may be allowed in any of the following cases: The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or extremely difficult to write or pronounce. The new first name nickname has or been habitually and
alien parentage; a sincere desire to
continuously used by the petitioner and he has been publicly known by that by that first name or
adopt a Filipino name to erase signs of former alienage, all in
nickname in community: or The change
good faith and without prejudicing anybody;
avoid confusion. ( Se c t i o n 4 )
Sources and Legal Basis: RULE 103, RULE 108 AND RA 9048, Special Proceedings 2011 by Gemilito Festin 4.16.2. GROUNDS FOR CHANGE OF NAME
SECTION 4. Grounds for Change of First Name or N i c k n a m e . – The petition for change of first name or nickname may
be allowed in any of the following cases: (1) The petitioner finds the first name or nickname to be ridiculous,
tainted with dishonor or extremely difficult to write or pronou nce; (2) The new first name or nickname has been habitually and continuously used by the petitioner and he has been publicly known by that first name or nickname in the community; or (3) The change will avoid confusion. (Sectio n 4, Rule 108)
However, a change of name does not alter one’s legal capacity or civil
the will
status. RA 9048 does not sanction a change of first name on the ground of sex reassignment. Rather than avoiding confusion, changing petitioner ’s first name for his declared purpose may only create grave complications in the civil registry and the public interest. (Silverio vs . CA G.R. No. 174689, Octo ber 22, 2007) Intersex a ground for change of name:
Where the person is biologically or naturally intersex the determining factor in his gender classification would be what the individual, like respondent, having reached the age of majority, with good reason thinks of his/her sex. Respondent here has simply let nature take its course and has not taken unnatural steps to arrest or interfere with what he was born with. (Peopl e vs. Cagandahan, G.R. No. 166676, Septem ber 12, 2008)
Factors to be considered in case of change of name:
The reasons offered for changing the name of petitioner's daughter are: (1) that "her daughter grew up with, and learned to love and recognize Alfredo de la Cruz as her own father"; (2) to afford her daughter a feeling of security; and (3) that "Alfredo de la Cruz agrees to this petition, and has signified his conformity at the foot of this pleading". Clearly, these are not valid reasons for a change of name. ( R P vs. Ho n. Marcos & Pang Ch a Quen, G.R. No. L-31065, February 15, 1990 ) An illegitimate child cannot use the surname of his father:
An illegitimate child whose filiation is not recognized by the father bears only a given name and his mother ’ surname, and does not have a middle n ame. The name of the unrecognized illegitimate child therefore identifies him as such and it is only when the illegitimate child is legitimated by the subsequent marriage of his parents or acknowledged by the father in a public document or private handwritten instrument that he bears both his mother ’s surname as his middle name and his father ’s surname as his surname. (RP vs. Capo te, G.R. No. 157043, Febr uary 2, 2007)
4.17. ABSENTEES Appointment of representative in favor of the absentee:
The law (see Articles 381, 382 and 383 ) requires the judge to appoint a representative for the absentee precisely to safeguard the property or interest of the latter. It is thus imperative that the declaration of absence be for a specific purpose, and that purpose can be no other than the protection of the interest or property of the absentee. (In Re Petition f o r D e c l a r at i o n O f A b s e n c e O f R o b e r t o R e y e s v s . Al ejand ro, G.R. No. L-32026 Janu ary 16, 1986)
Requirements for representation:
There must be an immediate necessity for the representation of the absentee in some specific urgent matters. (C a s t an C o m m e n t a r y ) Reason for the declaration of absence:
The need to have a person judicially declared an absentee is when he has properties which have to be taken cared of or administered by a representative appointed by the Court (Article 384, Civil Code ) The petition to declare the husband an absentee and the petition to place the management of the conjugal properties in the hands of the wife may be combined and adjudicated in the same proceedings. (Peyer vs. Mar tinez, 88 Phil. 72, 80) 4.17.1. PURPOSE OF THE RULE:
A perusal of Rule 107 of the Rules of Court on absentees reveals that it is based on the provisions of Title XIV of the New Civil Code on absence. And the reason and purpose of the provisions of the New Civil Code on absence (Arts. 381 to 396) are: (1) The interest of the person himself who has disappeared; (2)
The rights of third parties against the absentee, especially those who have rights
which would depend upon the death of the absentee; and The general interest of society which may require that property does not remain abandoned without someone representing it and without an owner (Civil Code by Francisco, Vol. 2, pp. 930- 931, 1953 Ed.) (In Re Petition For Declaration Of A bsenc e Of (3)
Rob erto Reyes Vv A lejand ro, G.R. No. L-32026 Janu ary 16, 1986) 4.17.2. WHO MAY FILE; WHEN TO
FILE WHO MAY FILE PETITION? a) Spouse present; b) Heirs instituted in a will; c) Relatives who would succeed intestate; d) Those who have over the absentee’s property some right subordinated to the
condition of his death. WHEN TO FILE PETITION? a) After the lapse of two (2) years from his disappearance or since the receipt
of the last news about the absentee; or b) After the lapse of five (5) years from such disappearance, if the absentee has left a person to administer his property. (Section 2, Rule 107)
Title XI of the Family Code is entitled SUMMARY JUDICIAL PROCEEDING IN THE FAMILY LAW contains the following provision, inter alia: Art. 238. Unless modified by the Supreme Court, the procedural rules in this Title shall apply in all cases provided for in this Code requiring summary court proceedings. Such cases shall be decided in an expeditious manner without regard to technical rules. (Art . 238, Title XI of the Family Co de)
There is no doubt that the petition of Apolinaria Jomoc required, and is, therefore, a summary proceeding under the Family Code, not a special proceeding under the Revised Rules of Court appeal for which calls for the filing of a Record on Appeal. It being a summary ordinary proceeding, the filing of a Notice of Appeal from the trial court ’s order sufficed. (RP vs CA , G.R. No. 163604. May 6, 2005) 4.18. CANCELLATION OR CORRECTION OF ENTRIES IN
THE CIVIL REGISTRY: Substantive basis of correction or alteration of entries in the Civil Registry:
Article 412 of the New Civil Code is the only substantial law covering the alteration or correction of entries in the civil register which alteration or correction can only be effected through a judicial order. When petition involves substantial and controversial alterations
It is clear from the foregoing discussion that when a petition for cancellation or correction of an entry in the civil register involves substantial and controversial alterations, including those on citizenship, legitimacy of paternity or filiation, or legitimacy of marriage, a strict compliance with the requirements of Rule 108 of the Rules of Court is mandated. If the entries in the civil register could be corrected or changed through mere summary proceedings and not through appropriate action wherein all parties who may be affected by the entries are notified or represented, the door to fraud or other mischief would be set open, the consequence of which might be detrimental and far reaching. ( Re p u b l i c o f t h e Philipp ines vs . Dr. Norma S. Lug sanay Uy., G.R. No. 198010, Au gu st 12, 2013)
Substantial errors in a civil registry may be corrected and the true facts established provided the parties aggrieved by the error avail themselves of the appropriate adversary proceedings. Thus, correcting the entry on Onde ’s birth certificate that his parents were married on December 23, 1983 in Bicol to "not married" is a substantial correction requiring adversarial proceedings. Said correction is substantial as it will affect his legitimacy and convert him from a legitimate child to an illegitimate one. FRANCLER P. ONDE vs. THE OFFICE OF THE
LOCAL CIVIL REGISTRATION OF LAS PIÑAS CITY G.R. No. 197174, September 10, 2014, J. VILLARAMA, JR. Changes in citizenship or status are substantial changes:
Changes in the citizenship of a person or in his status from legitimate to illegitimate or from married to not married are substantial as well as controversial, which can only be established in an appropriate adversary proceeding . (Rosales vs Castillo-Rosales, G.R. No. L31712 Septem ber 28, 1984)
Clerical or typographical error can be subject of administrative correction:
Clerical or typographical errors in entries of the civil register are now to be corrected and changed without need of a judicial order and by the city or municipal civil registrar or consul general. What is left for the scope of operation of Rule 108 are substantial changes and corrections in entries of the civil register. (Lee v. CA , G.R. No. 118387, Octo ber 11, 2001)
Requirement of two (2) notice of hearing to different potential oppositors
The fact that the notice of hearing was published in a newspaper of general circulation and notice thereof was served upon the State will not change the nature of the proceedings taken. A reading of Sections 4 and 5, Rule 108 of the Rules of Court shows that the Rules mandate two sets of notices to different potential oppositors: one given to the persons named in the petition and another given to other persons who are not named in the petition but nonetheless may be considered interested or affected parties. Summons must, therefore, be served not for the purpose of vesting the
courts with jurisdiction but to comply with the requirements of fair play and due process to afford the person concerned the opportunity to protect his interest if he so chooses. While there may be cases where the Court held that the failure to implead and notify the affected or interested parties may be cured by the publication of the notice of hearing, earnest efforts were made by petitioners in bringing to court all possible interested parties. Such failure was likewise excused where the interested parties themselves initiated the corrections proceedings; when there is no actual or presumptive awareness of the existence of the interested parties; or when a party is inadvertently left out. (Republic of the Philippines vs. Dr. Norma S. Lugsanay Uy., G.R. No. 198010, August 12, 2013) Nature of the proceedings under R.A. 9048 and 108:
Due to RA 9048, Rule 108 ceases to be summary in nature and takes on the character of an appropriate adversary proceeding. RA 9048 now embodies the summary procedure, while Rule 108 provides for the adversary proceeding. (Lee v. CA, G.R. No. 118387, Octob er
11, 2001) 4.18.1. ENTRIES SUBJECT TO CANCELLATION OR CORRECTION
UNDER RULE 108, IN RELATION TO R.A. NO. 9048 1. Births 2. Marriages 3. Deaths 4. Legal separations 5. Judgments of annulments of marriage 6. Judgments of declaration of nullity of marriage 7. Legitimations 8. Adoptions Adoptions 9. Acknowledgments Acknowledgments of natural children 10. Naturalization 11. Election, loss or recovery of citizenship 12. Civil interdiction 13. Judicial determination of filiation 14. Voluntary emancipation of a minor; and 15. Changes of names (Sectio (Sectio n 2, Rule 108)
The civil registrar and all persons who have or claim any interest which would be ). S ection 3, Rule 108 108 affected by such correction or cancellation shall be made parties ( Section WHAT CORRECTIONS CAN BE MADE BY RA 9048?
RA 9048 allows these corrections: 1) Correction of clerical or typographical errors in any entry in civil registry
documents, EXCEPT corrections involving the change in sex, age, nationality and status of a person. 2) Change of a person's first name in his/her civil registry document under certain grounds specified under the law through administrative process. (Civil Registration - Primer for Primer for RA 9048).
What is clerical error? “A clerical or typographical error” refers to an obvious mistake committed in
clerical work, either in writing, copying, transcribing, or typing an entry in the civil register that is harmless and innocuous, such as a misspelled name or misspelled place of birth and the like, and can be corrected or changed only by reference to other existing record or records. (Sectio n 2, RA 9048)
Sexual reassignment not a ground for change of name:
A person ’s first name cannot be changed on the ground of sex reassignment. No law allows the change of an entry in the birth certificate of petitioner as to sex on the ground of sex reassignment of the applicant. Also, all entries in the birth certificate of petitioner were correct since the sex of a person is determined at birth (Silverio vs . ). Repu blic, G.R. No. 174689, Oct . 22, 2007
Substantial errors in a civil registry may be corrected and the true facts established provided the parties aggrieved by the error avail themselves of the appropriate adversary proceedings. Thus, correcting the entry on Onde ’s birth certificate that his parents were m arried on December 23, 1983 in Bicol to "not married" is a substantial correction requiring adversarial proceedings. Said correction is substantial as it will affect his legitimacy and convert him from a legitimate child to an illegitimate one. FRANCLER P. ONDE vs. THE OFFICE OF THE LOCAL CIVIL REGISTRATION OF LAS PIÑAS CITY G.R. No. 197174, September 10, 2014,
J. VILLARAMA, JR. 4.18.2: CORRECTIONS UNDER R.A. 10172: a) Birth date; b) month c) gender except sexual reassignment; 4.18.3 CONSTITUTION OF FAMILY HOME: RULES ON CONSTITUTION OF
FAMILY HOMES, FOR PURPOSES OF EXEMPTION EXE MPTION FROM EXECUTION First, family residences constructed before the effectivity of the Family Code or
before August 3, 1988 must be constituted as a family home either judicially or extrajudicially in accordance with the provisions of the Civil Code in order to be exempt from execution; Second, family residences constructed after the effectivity of the Family Code
on August 3, 1988 are automatically deemed to be family homes and thus exempt from execution from the time it was constituted and lasts as long as any of its beneficiaries actually resides therein; Third , family residences which were not judicially or extrajudicially constituted
as a family home prior to the effectivity of the Family Code, but were existing thereafter, are considered as family homes by operation of law and are prospectively entitled to the benefits accorded to a family home under the Family Code. Here, the subject property became a family residence sometime in January 1987. There was no showing, however, that the same was judicially or extrajudicially constituted as a family home in accordance with the provisions of the Civil Code. Still, when the
Family Code took effect on August 3, 1988, the subject property became a family home by operation of law and was thus prospectively exempt from execution. The petitioners were thus correct in asserting that the subject property was a family home. (SPOUSES ARA CELI OLIVA-DE MESA an d ERNESTO S. DE MESA, vs. SPOUSES SPOUSES CLA UDIO D. ACERO, JR. and M A. RUFINA D. ACERO,SHERIF ACERO,SHERIFF F FELIXBERTO L. SAM ONTE and REGISTRA R AL FREDO SANTO S., G.R. G.R. No. 185064, 185064, Jan uary 16, 2012) 4.19. APPEALS IN SPECIAL PROCEEDINGS:
Generally , in the absence of statutory provisions directing otherwise, any order,
judgment or decree of the probate court capable of being enforced, enfor ced, or taking effect without further order, may be appealed from; and that no action of the probate court can be appealed from which requires a subsequent order or judgment to give it effect. (Woerner, The Am erican Law of A dm inis tration, Vol. 3, 3, pp. 1860-6 1860-61. 1.))
An order directing one to appear and submit to an examination examination touching touching any property in his possession belonging to an intestate, otherwise, he shall be committed to prison, is (Intestate of the deceased Kaw Sing co (alias (alias Co Chi Seng) vs. Quirico Quirico Ab eto APPEALABLE. APPEALABLE. (Intestate G.R. No. L-47631 Ap ril 25, 1941) 4.19.1. JUDGMENTS AND ORDERS FOR WHICH APPEAL MAY BE TAKEN T AKEN
An interested person may appeal in special proceedings from an order or judgment rendered r endered by a Court of First Fir st Instance or a Juvenile and Domestic Relations Court, where such order or judgment: (a) Allows or disallows a will; (b) Determines who are the lawful heirs of a deceased person, or the
distributive share of the estate to which such person is entitled; (c) Allows
or disallows, in whole or in part, any claim against the estate of a deceased deceased person, or any claim presented on behalf of the estate in offset to a claim against it; (d) Settles the account of an executor, administrator, trustee or guardian; (e) Constitutes, in proceedings relating to the settlement of the estate of a
deceased person, or the administration of a trustee or guardian, a final determination in the lower court of the rights of the party appealing, except that no appeal shall be allowed from the appointment of a special administrator; and (f) Is the final order or judgment rendered in the case, and affects the substantial rights of the person appealing unless it be an order granting or denying a motion for a new trial or for reconsideration. (Sectio n 1, Rule 109) 4.19.2. WHEN TO APPEAL
Appeals in special proceedings proceedings necessitate a record on appeal as the original record should remain with the trial court. Hence, the reglamentary period of thirty (30) days is (Sectio n 2, Ru le 40) provided for the perfection of appeals in special proceedings. (Sectio
4.19.3. MODES OF APPEAL
While under the concept in ordinary civil actions some of the orders stated in Sec. 1 may be considered interlocutory, the nature of special proceedings declares them as appealable orders, as exceptions to the provisions of Sec.2, Rule 41 . Thus: a) O r d i n a r y a p p e a l. The
appeal to the CA in cases decided by the RTC in the exercise of its original jurisdiction shall be taken by filing a notice of appeal with the court which rendered the judgment or final order appealed from and serving a copy thereof upon the adverse party. No record on appeal shall be required except in special proceedings and other cases of multiple or separate appeals where the law or the Rules so require. In such cases, the record on appeal shall be filed and served in like manner. b) P e t it i o n f o r r e v i e w . The
appeal to the CA in cases decided by the RTC in the exercise of its appellate jurisdiction shall be by petition for review in accordance with R u l e 42 . c) P e t it i o n f o r r e v i e w o n c e r t i o r a r i. In
all cases where only questions of law are raised or involved, the appeal shall be to the SC by petition for review on certiorari in accordance with Rule 45. 4.19.4. RULE ON ADVANCE DISTRIBUTION:
Notwithstanding a pending controversy or appeal in proceedings to settle the estate of a decedent, the court may permit the part of the estate not affected by the controversy or appeal to be distributed among the heirs or legatees, in accordance with the Rule 90. (Section 2, Rule 109)
WRIT OF KALIKASAN
Under Section 1 of Rule 7, the following requisites must be present to avail of this extraordinary remedy: (1) there is an actual or threatened violation of the constitutional right to a balanced and healthful ecology; (2) the actual or threatened violation arises from an unlawful act or omission of a public official or employee, or private individual or entity; and (3) the actual or threatened violation involves or will lead to an environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces. The Rules do not define the exact nature or degree of environmental damage but only that it must be sufficiently grave, in terms of the territorial scope of such damage, so as tocall for the grant of this extraordinary remedy. The gravity of environmental damage sufficient to grant the writ is, thus, to be decided on a case-to-case basis. Hence, we sustain the appellate court ’s findings that the Casiño Group failed to establish the alleged grave environmental damage which will be caused by the construction and operation of the power plant. HON. JESUS P. PAJE, in his capacity as
